Are retailers violating the HIPAA ACT?

With the COVID situation running rampant, it shouldn’t be a surprise that your medical information is now being forced to be presented to employers. Failing to do so is met with consequences, loss of employment, or even suspension without pay. However, some employers, such as Dollar Tree, have taken this a step further. They not only ask for your medical information, they are accused of asking for information pertaining to related to the employee. With this accusation, a member of our team applied, got the job, and tested this theory out. This article is going to present information provided to us by a former employee and the results of what we learned first hand.

HIPAA

The Health Insurance Portability and Accountability (HIPAA) Act was designed in 1996 with the purpose of protecting sensitive medical information. With this act, doctors are forbidden from divulging information of any patient without having prior written consent. However, the act expands beyond that aspect. With the HIPAA Act, patients have control of their medical information, they can choose who to provide this information to, and it limits what medical information an employer can obtain; this last portion is where our article is primarily focused.

While this act doesn’t necessarily pertain to employers, there are aspects of it that do. For instance, under the HIPPA Act, an employee is not required to divulge their medical files, or even diagnosis and treatment. While we are currently in a pandemic, this changes nothing as the HIPPA Act simply does not address situations such as this. An employer asking an employee the results of a Covid test could be taken as a violation as, once again, a patient is not required to give the employee their diagnosis or treatment information. This brings us to the retail industry, who seem to ask their employees for this very piece of vital information.

Retails intrusive questions

With the information we had obtained from a source, our platform decided to go “inside” and find out for ourselves. For this, a member of our team applied at a local “Dollar Tree.” This location was selected because it was the company that we had gotten the complaint about. Like magic, the application was approved and we had our feet in the door. At this point, the investigation commenced.

The first night was uneventful. No questions were asked, just the typical “pre-opening” work. Shelves were stocked, boxes were stored, that sort of thing. Our new insider had begun to question rather or not the accusations were, in fact, even true. After working for hours, we had initially thought the investigation was a fluke. This conclusion didn’t last long, however. Prior to the insider’s employment, we had already established that if they did ask any of the questions, they were to answer at least one of them with “yes.”

The reason behind this was simply to see what the store would do in this situation. We already had established that answering “no” gave you the “right” to work, we wanted the other end of the spectrum. On night two, our insider reports that they arrived at the store. Upon entering, they were immediately stopped and asked some questions. Because this was being recorded, we are providing the very questions that were asked. We are also providing the response given by our insider.

The questions

Q: Have you been around anybody who has tested positive for Covid?

A: If I had been, there is no way that I could possibly know, so I’m going to say no. It is important to note that the employer is marked with (Q) while our insider is marked with (A.)

Q: In the past 24 hours, have you been around anybody who has been tested for Covid?

A: Yes.

Q: Wait, you’ve been around somebody who got tested for Covid?

A: Yeah.

Q: Do you know the results of their tests? (Highlighted as this question potentially violates HIPPA.)

A: No, I don’t know their tests results. Why?

Q: Because that means you can’t come into work.

A: What do you mean I can’t come to work, why not?

Q: Because you’re putting the entire store at risk.

A: Uh, okay, that makes no sense but whatever.

It’s important to note a few things within these questions. The first is the redundancy of the first question. If this had not been our insider, but another employee, they would already be at a high risk of exposure, they’re working retail. The second thing to note is what HIPAA says about asking for test results: they aren’t permitted to know what a diagnosis or treatment is. If the test were to be a positive, the employer is not permitted to know this as the patient would be diagnosed with Covid. Branching beyond that, the employer is also not permitted to know what the treatment plan for the said diagnosis is. Essentially, asking this question is a legal situation in the making. With a good attorney, this company could face a rather hefty penalty.

While all of the questions are intrusive, the specific question asking for test results, especially regarding those not employed with the company, is the smoking gun for any “litigation-happy” disgruntled employee. Expanding beyond the questions, we are left with one unanswered question: why the inconsistency?  On the first night of employment, our insider received no questions prior to their shift. However, on the second night, they were questioned. If the employers policy regarding “safety” was so serious, wouldn’t they be asking these intrusive questions prior to every shift?

While this subject, especially now, remains highly controversial, it is one that should be discussed. The question asking, “how far is to far?” is simply not asked enough. In this year alone, we have seen some of the worst violations to our rights than at any point in America’s history. Our right to religious freedom being a primary example. During this time, we saw ministers being arrested simply for refusing to cease with the practice of their religious freedoms, in the way that their religions required. But the violations didn’t start, nor did they end, there. For now, we will simply ask this one question: Will Americans ever say “enough is enough?”

 

Editorial Statement

Due to the backlash on Twitter, we are clarifying that this article is purely opinion. We are asking a question, noted by the title, and are simply responding with our thoughts. While the companies may not be violating HIPAA, by requesting information of people, who are not employed with them, we can at least establish that the privacy of those individuals have been violated.

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