What can you do to stop an e-mail snoop?

Q We are a relatively small family-owned company. Our IT manager takes it upon himself to read everyone's (including his coworkers') e-mails, many of which involve correspondence with HR, workers' compensation claims, and benefits questions. I know it's unethical, but I need to be able to present to the owners that what he is doing is wrong and could violate the Health Insurance Portability and Accountability Act (HIPAA). I know the e-mails are the company's property, but unless he's directed by an owner to check a communication based on a suspected policy violation, he shouldn't be able to read anything. Are there any specific laws I can reference to make my case?

A Unless your IT manager is disclosing e-mails containing protected health information to persons outside the company, there probably is no HIPAA violation. However, because your IT manager probably isn't involved in administering your health plan, if he is combing through employee e- mails looking for employee health problems, then there could be a HIPAA problem as well as a potential state-law invasion-of-privacy issue. Your IT manager's practice could subject the company to invasion-of-privacy claims if you haven't given employees clear notice that messages sent or received on the company's e-mail system are subject to monitoring for legitimate business purposes (e.g., to ensure compliance with company rules against excessive personal e-mail during work time or sending obscene or other inappropriate messages). Even with notice, there could be problems if your IT manager is reviewing employee e-mail for something other than a legitimate business purpose, as your question seems to indicate. For instance, the National Labor Relations Act (NLRA) prohibits monitoring employees in a way that interferes with their right to engage in activities that are protected by law, such as complaining about their supervisors or discussing their compensation and other workplace concerns. It sounds like your IT manager needs to be told to lay off the Big Brother act.

Q I have a well-respected long-term employee who has been gone this week because of a sensitive situation in her family. She has more than 12 weeks of leave available, so that's not the issue. Do I really have to give her paperwork for her family member's doctor to complete? If everyone in the company knows what happened, can I just skip calling it Family and Medical Leave Act (FMLA) leave and automatically assign it as FMLA leave without the paperwork?

A Your question doesn't indicate that your employee's family situation qualifies for FMLA leave, just that it's "sensitive." The purpose of the FMLA medical certification is to get you enough facts to determine whether the employee's or her family member's condition qualifies for FMLA leave. If you already have enough facts to make that decision, you can skip the medical certification, but if you plan to count the leave as FMLA time, you should send the employee the response form approved by the U.S. Department of Labor (DOL) to notify her that the leave will be counted against her FMLA entitlement and what her rights are. If the situation doesn't qualify for FMLA leave, just follow your normal policy for dealing with non-FMLA-qualifying absences, and make sure you're consistent with past practice.

Q We have a pregnant employee whose doctor has ordered her to go on two weeks of bed rest. If she wants to ignore her doctor's orders and return to work, can she? At this point, I have no paperwork stating that she must be off work.

A Protect yourself. You have the right to require the employee to provide medical certification of her ability to work. If her healthcare provider says she cannot or should not work or places restrictions on her ability to work that you can't accommodate, then you have the right to put her on medical leave until she is certified by her healthcare provider to return to regular employment.

Mark Adams, an editor of Louisiana Employment Law Letter, is a senior partner in Jones Walker's labor relations and employment practice. He can be reached in New Orleans at madams@joneswalker.com or 504-582-8258.

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