When Privacy and Labor Law Collide
Suppose a union asks their bargaining unit’s employer for a list of names of all employees who have been exposed to or tested positive for COVID-19: Must the employer provide the requested medical information? Employee medical information is confidential, and many state privacy laws and the ADA prohibit employers from sharing employee medical records with third parties without prior employee authorization. Although the scope of information that labor organizations may request from employers is broad, employers still must exercise caution when they receive a request to disclose their employees’ confidential medical information.
Under the National Labor Relations Act (“NLRA”), an employer is obligated to furnish, upon request, information that is relevant and necessary to the union’s performance of its duties as a bargaining representative, including information concerning contract administration, negotiations, and grievance processing. Where the information sought by the union concerns wages, hours, or terms and conditions of employment, the information is deemed presumptively relevant. The National Labor Relations Board (“NLRB”) typically applies a broad discovery-type standard in assessing relevance. Many of the union information requests received by employers during the COVID-19 pandemic have been related to workplace safety and employers’ COVID-19 business plans. These types of issues involve mandatory subjects of bargaining, so they fall comfortably within the NLRB’s standard for relevance. As such, employers have a duty to furnish the information.
However, requests for personally identifying confidential medical information implicate separate privacy obligations. Does this mean unionized employers can ignore union requests for confidential medical information? Not exactly.
The need to protect confidentiality is a recognized interest that may offset a union’s interest in obtaining relevant information, but NLRB precedent also requires employers to: 1) timely raise and prove their confidentiality claims; and 2) seek an accommodation through the bargaining process in order to satisfy their obligations under the NLRA. In practice, this means that employers should respond to union requests for medical information by asking for the reasons behind the requests. Alternatively, employers can object to requests for medical information on the basis of confidentiality and offer the union an accommodation (e.g., redacted medical information, such as statistical data without employee-identifying information). Simply ignoring union requests for information because of confidentiality concerns, without more, risks exposure to an unfair labor practice charge. So employers should review these requests carefully and give special attention to their response.
Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.