Good Fences Make Good Neighbors: Separating ADA and FMLA Documents From Personnel Files

It’s tempting to create one file on an employee that has all information relevant to his or her employment. It’s also very dangerous. It is vital that employers keep documentation about issues pertaining to the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) separate from the employee’s personnel file.

Treat ADA, FMLA and CFRA as you would highly confidential medical information—because that’s what it is. It belongs nowhere near an employee’s personnel file and performance evaluations. Employers must ensure managers do not see information about an employee’s medical condition. Discussions of those issues with an employee should happen privately, in HR, which will later make a determination what a manager may need to know. A good rule of thumb is to minimize what a manager sees or knows about an employee’s medical condition, family situation, or reason for requesting leave.

Any records, including emails, about the interactive process and accommodations that have been proposed, considered, accepted and rejected, and why, need to be included. These should be kept in a highly secure, locked environment, electronic or otherwise. If a company is relying on digital records, it needs to ensure it has adequate privacy and cybersecurity protections. It is also vital that back-up systems are in place. These files should never leave HR without consulting with counsel.

Companies are asking for trouble if these records are comingled in personnel files. From a legal perspective, an employee’s performance has nothing to do with any medical condition or other reason for leave or accommodation. HR is the guardian of the employer’s liability, and bears the burden of warding off legal risk in this area. Creating strict separations between such information is the first step, and likely one of the most important.