Should I give my employer all my medical records?

Question

I have been a software developer in a large organization for more than a decade. I have ADHD and see a psychiatrist every 3 weeks. Boss is now demanding access to all my health records or said he will fire me. He has also locked my Active Directory account (he says temporary) and deactivated my building pass until I sign the document for HR to obtain all my medical records.

I have till Monday (less than a week) to sign the document.

I am located in Australia.

Should I sign the document so my employer has access to all my medical records and all the psychiatrist's notes on me?

TL;DR ADHD Software Developer. Employer demands access to all information in my medical records.

Answer 1

In Australia employers are able to request access to specific details within medical records with employee consent where there is a reasonable suspicion that the employee may not be fit to perform their duties.

This is not highly irregular generally speaking, though somewhat unusual unless your condition presents a risk to health and safety. Though find the wording and time-frames to be particularity broad in scope.

You should organise an appointment with your doctor as soon as possible. They can provide guidance on the types of information they would disclose.

Concurrent to that, you should reach out to the Fair Work Commission (formerly called Fair Work Australia) and seek their guidance. They will be able to give you more information about this. They may even give you a revised template letter that limits the scope and effect.

You should indicate to your employer that you will not give consent in the short term, and that you are seeking advice on the matter. You should indicate to your employer that you are ready and willing to work.

If you refuse to sign the document, they may also be able to insist you get assessed by a medical professional of their choosing. It's quite possible this medical professional may not give as favourable opinion as your treating practitioner.

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If I could just take a bit of a detour to sort of hypothesise what has happened here. You've been working there 10 years, so I think there has been some sort of catalyst for this event.

It's possible that you've engaged in some form of activity that your employer has deemed sufficient to fire you over (possibly rightfully so). You have pointed to your medical condition as a contributing factor to your actions. (I am not making any claim that you are justified or not). Your employer has placed you on leave while they can get to the bottom of this. (Which is not unusual). Your employer is now taking steps to understand the nature of your condition to:

• Understand to what extent you are telling the truth
• Understand the nature of your condition to better provide any support you may need
• Understand the nature of your condition to ensure that workplace policies accommodate you
• Make life as hard as possible for you
• Some combination of the above

Answer 2

Talk to an employment solicitor, or if you are in a union you give them a call. I am not from Australia but in my country this would be a slam dunk case for a hefty severance.

I have till Monday (less than a week) to sign the document.

You can ask for more time. They can try to fire you. Your solicitor/union can help you negotiate. Do not sign this contract.

Let's face it. Your career at this place is probably limited already. This demand means they have singled you out for some reason. You should prepare yourself to negotiate severance, a good letter of recommendation and then move on to another job.

Answer 3

Go A Lawyer ASAP.

I have been a software developer in a large organization for more than a decade.

Then presumably you have at least an acceptable track record with them as you'd have been let go a long time back if not.

I have ADHD and see’s a psychiatrist every 3 weeks.

Your medical condition is no-one's business unless it directly impacts your ability to work or requires special conditions to work in.

Boss is now demanding access to all my health records or said he will fire me.

Your medical record are not their business unless they can show your a cause for needing such records.

He has also locked my Active Directory account (he says temporary) and deactivated my building pass until I sign the document for HR to obtain all my medical records.

That, in my jurisdiction, would be blatant constructive dismissal.

They are preventing you from working. Make sure you continue to report for work and make a record of everytime you are refused access. Email HR everytime they refuse you access to work and ask them to justify this. No phone calls.

I have till Monday (less than a week) to sign the document.

Talk to a lawyer and ideally one engaged in employment law.

If they fire you it would, frankly, be no bad thing as they are clearly awful employers. As you've been there ten years it suggests a change in management up the line and not for the best.

If you are fired you still have legal recourse.

I am located in Australia.

There are typically independent agencies that offer basic legal advce to people on their rights and are often free. Look for these.

Should I sign the document so my employer has access to all my medical records and all the psychiatrist's notes on me?

No without your own solicitor's legal advice to do so.

Note that the document does not explicitly request the psychiatrist's notes.

I cannot say never as I don't know the detail of Australian employement law, but I can think of no jurisdiction where detailed notes of a psychiatrist are going to be legitimately made available to a company. They're probably the single most private form of record available. Even the police would have difficulty obtaining such notes in an investigation. In some jurisdictions this would require a court order to obtain and would be extremely hard to get. They're trying to get you to volunteer this info which is extremely devious IMO.

Legal advice - now.

I would suggest emailing the head of HR directly stating flatly that you will need to seek independant legal advice before proceeding. I would suggest indicating your are astonished that such private material could be demanded and that at present it is your employer who is preventing you from working and not in any way your choice.

Regardless of what their reply get that legal advice.

Keep records of communications and decline any verbal communication as they are easily denied afterward. Emails only.

Lawyer. Now.

Answer 4

DO NOT SIGN ANYTHING AT ALL UNLESS YOU HAVE REVIEWED IT WITH A LAWYER.

I'm typically not a fan of "talk to a lawyer" but this is highly irregular and something bad is going on.

Things to do

1. Start looking for a local employment lawyer. Yes, it may cost you some money, but in this case you need legal protection.
2. Collect all documents and e-mails that are related to this and that you have still access to: performance reviews, time-off sheets, company policies, any type of warnings, your original and current contracts, recent pay slips, etc.
3. Prepare yourself for what happens on Monday. You may get fired, they may put disciplinary actions on you, they will put documents in front of you to sign. NO MATTER HOW HARMLESS THEY LOOK, DO NOT SIGN THEM. Nothing at all.
4. Practice in front of a mirror "Sorry, I cannot sign any document before I have reviewed it with my lawyer". Repeat over and over again as needed.
5. They will probably try to pressure you with different types of approaches. You just have to sit it out. Do not sign anything, do not agree to anything, do not comment on anything, don't answer questions but evade them. Just sit and listen and say as little as possible. If they get aggressive use the line "I'm sorry you feel this way".

If you are lucky, this will get them to back off. I'm guessing their plan is to pressure you into whatever it is they want. By not replying, refusing to agree to or sign anything and mentioning lawyer (a lot), they will see that this doesn't work. Since there is a good chance that they are trying to do something that's not fully legal, they really don't want you to talk to a lawyer, so you may gain some leverage here.

Answer 5

DO NOT SIGN ANYTHING UNLESS YOU GET SOMETHING FOR IT

Also, medical information is PRIVATE in every civilized country and duress in forcing you to disclose it is criminal

See this - Employee rights to Privacy Australia

In my opinion, if you employed legally, you can and should sue this employer for a hefty sum of money.

As far as i understand they will incur a big fine from the authorities as well.

@GregoryCurrie You do not have to disclose your diagnosis to your employer, unless your symptoms have the potential to create an unsafe workplace for you or your colleagues. For example, if you are a train driver and one of your symptoms is fatigue, this may impact on your ability to safely operate the train. From Here

Or here

Your employer cannot request any medical information from a medical professional without your consent. However, in the event of sickness , an employee is entitled to take their accrued paid sick leave

if they:

1. Are unfit for work because of a personal illness or injury

2. Provide the employer with evidence (e.g. a medical certificate or statutory declaration) that an illness or injury renders them unfit for work

In this instance, your employer retains the right to request a medical certificate.

Answer 6

Adding to the first part of @GregoryCurrie 's answer:

In Australia employers are able to request access to medical records with employee consent where there is a reasonable suspicion that the employee may not be fit to perform their duties.

(Emphasis mine)

I don't need to go into points covered by other answers, but there's more that needs to be done:

1. GET A LAWYER OR LEGAL ADVICE. For all the reasons stated by others.
2. Take copies of anything that shows your performance, or treatment, or perceptions of you by the company, or complaints by/to the company. If they escalate this, you need access to documents to check what they say is true and fair, and respond with points you may have made or performance matters you may be able to prove. Yes there may be legal hassle,no it doesn't matter. When they argue you underperformed, let them down, that they didn't do a thing wrong, with ADHD you'll need certainty to be able to check and look for countering reasons, as they can. You won't want to have to wait and hope they can be trusted to look all that up, to give you a fair chance against their own position.
3. Then, the crucially important thing. They can do what they ask, if they have a reasonable suspicion you may not be able to perform your duties. That's a legal phrasing, and can be quite a strict requirement. It means,
   (A) they must actually have a reasonable basis to believe that you are currently, or will imminently be, actually unfit to work in your role. and
   (B) The request to access medical information must be based on a reasonable suspicion that these records will actually document information that is germane to proving or disproving that you are unfit, or will be. Not just that you have a medical condition, but that the records are likely to provide actual evidence confirming or denying fitness to work. As someone with ADHD I can say that's extremely unlikely, medical records of this kind are likely to document conditions not working fitness as a rule. and
   (C) That it is reasonable to suspect/expect, that those specific medical records, will provide actual evidence of fitness/lack of fitness to work. Not just a vague belief it mayyy, and not just a "fishing trip" to see what they can find.

That means for example that asking for access to all medical records is inappropriate. For example, your illness age 10,your vaccines age 5, that sutured wound age 18, are totally irrelevant, as they don't evidence fitness/unfitness to work in your role. Asking for everything is a fishing trip. Blank flat out no. They need to be specific - and if they cannot be specific, then clearly they lack a reasonable suspicion that relevant records exist.

Response should probably explain and ask, although get legal advice, this is just a flavour of one possible style. This is to give you ideas how to think about it, not an actual draft to send!!:

Dear NAME,

I note your form asks for access to my full medical history. As you're probably aware, you may ask for such information from my practitioner but only when there is a reasonable suspicion that it will evidence fitness (or otherwise) to work. Mere hope that it will show this, or asking to access all records, including irrelevant ones, are signs of a fishing trip rather than reasonable suspicion.

Let's back up a bit. To have a legal ground to ask this information you must have a reasonable suspicion that they will contain evidence to show fitness or unfitness to perform my duties in my role. Do you actually have a reasonable belief that I am, or may be,unfit to perform in my role? Do you actually have a reasonable belief that the medical records you request (which include childhood vaccines and growth, through to minor surgeries as well) are each needed, and that only such broad access suffices, or will provide actual and new evidence on this point?

Personally I can't see that most of my medical records are relevant. Perhaps if we discuss fitness and performance, it would be a useful first step. But as it is, the request is overbroad, the criteria don't seem to be met, and the tone is ominous, so if insisted on, I trust you will agree that I should be wise and seek legal advice before anything else. I am therefore returning the matter to you,and trust we can talk and if still unresolved, that you will appreciate that it is not possible to sign such a document prior to retaining legal advice.

Best regards.

Do not let yourself be pressured or feel unable to resist. Stand firm!!!

Answer 7

It's Saturday in your timezone right now. I think you should have asked this the moment you got it and perhaps then you could have time to go talk to a lawyer. My guess is that yes, on Monday you will be let go of if you do not sign it.

My thought is you should first talk to a lawyer about it. Depending on how the situation went or how much time you took off (such as taking off right immediately after a big project was due) then you might have a case against them. However, it really depends on where you live and what sort of laws are there. My thought is if the boss gave you this paper, then chances are corporate already got their lawyers to review the situation and asking you for information to determine if they have reasons to fire you. My thought is you shouldn't sign it just yet until at least you know your rights then at least you can go about it reasonably.

Edit: I should also caution that I dislike how this stack tells people to go see lawyers. In my life, I went to see a lawyer about 2 times over various issues with land-lease, and in each time, even though the guy is a "family friend" he charges me a "discount" of $250 an hour. If I wanted him to help me with filing and all that, the charge is about $1000 per hour with him just coming to court. So going the lawyer route is expensive and you have to feel strongly about your position. Some lawyers might go pro bono but you have to fit some category and you might be able to find someone who helps with mental disability and helping folks out but that will take some time to find and until then you're out of a job or being under pressure at your current job.

Overall it may be a very good advice to dust off your resume, and start looking for a new job.

Answer 8

Gregory Currie has given a great answer already.

I want to give a direct answer to the direct question asked:

Should I give my employer all my medical records?

Under absolutely no circumstances, ever.

They key word here being "all". If your employer has a reasonable request regarding a particular medical issue, you can - after due consideration - give him access to those records. Like if your job involves heavy lifting and you have an issue with your back, your employer should know about it for both his and your protection.

But never, ever, does an employer have a reason to make a blanket request for

all and any information relating to any medical condition

Never, ever.

Answer 9

I'm in the U.S. so the main thing I've been able to scrap from the internet is this:

Minimum periods of notice at termination are set out in the National Employment Standards. The length of notice required to be given to an employee will depend on the duration of the employee’s period of continuous service. At the lowest end, an employee who has been with their employer for less than a year is entitled to one weeks’ notice. At the highest point, if an employee has been continuously employed with an employer for more than five years, they are entitled to four weeks’ notice.

https://www.shrm.org/resourcesandtools/hr-topics/global-hr/pages/australia-terminating-employees.aspx

In the U.S. you are under no obligation to sign such a document but the employer is under no obligation to keep you employed either unless you have a protected medical illness for which you are seeking help. If you have a protected medical illness then proof is required; albeit, not an entire medical history.

I assume there is more to this story and a series of events has led this employer to essentially investigate you. Regardless of what happens, I think the sun has set on your relationship with this employer.