Following is the portion of a recent posting on the MSPB site explaining a change in law enacted last year making it a prohibited personnel practice for agencies to access the medical records of their employees under certain circumstances, including as an act of retaliation.
What does the 14th PPP prohibit?
All PPPs begin with a statement that “[a]ny employee who has authority to take, direct others to take, recommend or approve any personnel action, shall not, with respect to such authority ….” The 14th then specifically makes it a PPP for such an employee to “access the medical record of another employee or an applicant for employment, as part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).”
Most of the other PPPs were part of the Civil Service Reform Act of 1978. Was this one?
No. The 14th PPP was set out in section 103 of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, An accessible version of this document may exist, click here to access that version Pub. L. No. 115-73Pub. L. No. 115-73, 131 Stat. 1235 (October 26, 2017).
Who was Dr. Chris Kirkpatrick and why is the law named after him?
Dr. Kirkpatrick was a clinical psychologist at a Veterans Administration medical center in Wisconsin. He had complained about the over-prescription of opiates to patients receiving care at the center, which he alleged made it difficult for him to treat them, and about other issues, and was later fired for reasons he considered false and in retaliation for his whistleblowing. As a probationary employee, he did not have substantive appeal rights to MSPB from his termination (although if he had sought relief from the Office of Special Counsel (OSC), he could then have come to the Board with an individual right of action (IRA) appeal based on his whistleblowing). He committed suicide very soon after being terminated. The bill that ultimately became this Act was introduced by a Senator from Wisconsin in his memory, partly to fulfill what was said to be his wish that others in his position be protected from retaliation. In addition to creating the 14th PPP, the law also increased protection for whistleblowers by requiring that an agency head propose discipline against a supervisor who is found to have retaliated against a whistleblower, that the agency head give priority to a request for transfer made by an employee on whose behalf the MSPB has granted a stay, and that the Comptroller General of the United States submit to Congress a study of retaliation against probationary employees.
Given its origin, is the prohibition limited to employees at the Department of Veterans Affairs?
No. The statute contains two “titles.” Title I applies to “Employees Generally” and Title II applies to “Department of Veterans Affairs Employees” specifically. The new PPP is part of Title I. Further, although the events that eventually led to this law’s enactment took place at that agency, the placement of the prohibition at 5 U.S.C. § 2302 makes it applicable to every agency and employee covered by that section. While the Department of Veterans Affairs (DVA) has access to more medical records than most agencies because of its mission regarding veterans for whose treatment it is responsible, the prohibition concerns accessing the medical records of employees and applicants for employment, not patients. Agencies that do not have a medical function as part of their mission have access to medical records of employees and others as part of their personnel records when such employees occupy positions with medical requirements or have requested reasonable accommodations, leave under the Family and Medical Leave Act of 1993, or sick leave, or for other reasons. Thus, the proscription extends far beyond the DVA to all agencies covered by 5 U.S.C. § 2302.
So, if a supervisor accesses my medical records is that a PPP? What about if he then tells someone else what those records say?
Accessing medical records may be done for proper purposes, so it is not a PPP simply to access such records. Even disclosing to another individual the contents of those medical records may not constitute the commission of the 14th PPP. The prohibition is that a person with the requisite authority may not “access the medical record of another employee or an applicant for employment, as part of, or otherwise in furtherance of, any conduct” that constitutes another PPP. Thus, not only must the authority access the medical record of an employee or applicant, but he or she must also do so in connection with the commission of another PPP.
Is there Board or court case law on what situations constitute the 14th PPP? What actions might constitute such a violation?
The provision became effective at the end of October of 2017, and has not yet been tested before the MSPB. Because the Board is prohibited by law from issuing advisory opinions, 5 U.S.C. § 1204(h), we cannot state with certainty what situations may give rise to the finding of the 14th PPP. However, it would not be difficult to envision a situation in which an agency official accesses an applicant’s medical records to “willfully obstruct” the applicant’s right to compete for employment (PPP 4). It is also possible to envision a situation in which a supervisor or other agency official accesses an employee’s medical records to deny him a promotion or other job-related advantage based on the information in that record, even though the employee can safely and competently perform the job. Such actions might be found to constitute disability discrimination (PPP 1). It is likely that as time goes on, there will be situations in which the MSPB and the courts may find–or reject–claims that various supervisory or managerial actions constitute the 14th PPP.
Has accessing medical records been a punishable offense in Board law until now, even in the absence of a PPP?
Yes. The Board has frequently recognized the confidentiality of medical records and the seriousness of unauthorized access to them. For example, in Smith v. Department of Veterans Affairs, An accessible version of this document may exist, click here to access that version 93 M.S.P.R. 42493 M.S.P.R. 424 (2003), the Board held that it was a reasonable punishment to remove an employee for disclosing sensitive and confidential information about a veteran who was a patient and worked at the facility where the employee worked. In Hall v. Department of Veterans Affairs, An accessible version of this document may exist, click here to access that version 67 M.S.P.R. 62267 M.S.P.R. 622 (1995), the Board pointed out that 38 U.S.C. § 7332 prohibits disclosing information about certain medical conditions on the agency’s own initiative except as authorized by the statute. Due to the sensitivity of such information, it may be disclosed only if “authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor.” Relatedly, as noted in Doe v. Pension Benefit Guaranty Corporation, An accessible version of this document may exist, click here to access that version 117 M.S.P.R. 579117 M.S.P.R. 579 (2012), government wide regulations at 5 C.F.R. § 339.301(b) (d), limit agencies’ authority to order medical examinations to three situations: (1) An individual has applied for or occupies a position which has medical standards or physical requirements or which is part of an established medical evaluation program; (2) an employee has applied for or is receiving continuation of pay or compensation as a result of an on-the-job injury or disease; or (3) an employee is released from his or her competitive level in a reduction in force and the position to which the employee has reassignment rights has medical standards or specific physical requirements which are different from those required in the employee’s current position. Thus, even absent a PPP addressing access to medical records, the Board’s cases and laws and regulations have recognized the serious concerns that employees and others have in maintaining the confidentiality of their medical records and health related information.
May I bring a claim that my agency committed the 14th PPP directly to the MSPB?
Only in certain circumstances. That is, if you have been removed, demoted, suspended for more than 14 days, or been the subject of any other personnel action which is appealable to the Board, you may claim that the agency violated the 14th PPP when it took the action against you. In such a case, the agency would have the burden of proving the factual basis for the charge against you (in an adverse action) or the propriety of denying the benefit you are seeking (such as restoration to duty after military service or time on workers’ compensation, etc.), but you would then have the burden of proving by a preponderance of the evidence that the real reason for the agency’s action constitutes this PPP. Exceptions to this rule are appeals under the Veterans Employment Opportunities Act of 1998Veterans Employment Opportunities Act of 1998, the Uniformed Services Employment and Reemployment Rights Act of 1994, and the Whistleblower Protection Acts, wherein you may not claim discrimination, whistleblowing, or that the agency committed a PPP. If the personnel action that you believe constitutes PPP 14 is not appealable to the Board, you may file a complaint with the OSC to determine whether OSC will seek to persuade the agency that the action should be reversed, or will help you by prosecuting the case for you before the MSPB. If OSC does not prosecute the case for you, you may not then file an IRA appeal with the Board. In addition, of course, an agency may take an appealable action against an employee for committing the 14th PPP.
If I bring an action before the MSPB and am not satisfied with the result, can I seek review elsewhere?
Yes. Board decisions are appealable to the U.S. Court of Appeals for the Federal Circuit pursuant to 5 U.S.C. § 7703(a)(1), (b)(1). In addition, if you claim prohibited discrimination under 5 U.S.C. § 2302(b)(1), you may seek review in a U.S. District Court and then the U.S. Court of Appeals for the numbered Circuit in which the district court is located. In a very limited number of cases, certiorari may be granted by the U.S. Supreme Court following the decision of one of the Circuit Courts of Appeals.