Can an employer access workers' medical records?

There are a number of reasons why an employer may want to check the medical records of their employees or those of an individual they intend to hire. These include:

• to see if a potential employee has a health or physical ability which may impair their ability to do a specific job;
• to establish if there is an underlying health reason for frequent absences;
• to establish whether an employee should be covered by a permanent health insurance policy (PHI);
• to establish whether adjustments need to be made to assist someone classed as disabled under the Equality Act 2010 to do their job.

The Access to Medical Reports Act 1998 (AMRA 1998) states that an employer may have access to reports on an employee provided by a medical practitioner which are in connection with their employment. The employee must give his or her consent for their employer to be given such access.

AMRA 1998 applies to anyone who is under employment or who is seeking employment with a particular employer.

An employer can only obtain a medical report from a medical practitioner if it specifically relates to employment or insurance.

An employer must notify the employee or prospective employee concerned that they intend to apply to their doctor or medical practitioner to see their medical records.

Contained within the notification must be full details of the employee’s rights under the AMRA 1998.

An employer must obtain the employee’s written consent. This must be provided to the doctor before access is granted to the requisite report.

An employee can do the following things under AMRA 1998:

• refuse their consent;
• consent to the report being provided to their employer and state that it can be sent directly to their employer;
• consent to the report being provided to their employer, but state that they wish to see the report before this happens.

If an employee states that the report can be sent, but they wish to see it first, under s 4 of AMRA 1998 the doctor or medical practitioner must wait 21 days before sending the report to the employer. During this period, the employee must make suitable arrangements to come and see the report or have it sent to them.

If they do not do this within the 21 days, the report will be sent to the employer.

Under s 5 of AMRA 1998, an employee can ask the doctor to amend the report if they feel it is incorrect or misleading. The doctor can agree to amend the report; if they do not, they can attach details of the employee’s views and state why they did not make any changes.

An employee is entitled to withhold their consent for a report to be provided to an employer having been provided access to it under s 4 of AMRA 1998.

Section 6 of AMRA 1998 states that doctors will retain all reports requested by employers for six months. During this time the employee will be able to request access to them.

Section 7 of AMRA 1998 states that the doctor does not have to show the employee information which they believe might cause serious harm to the employee’s physical or mental health or that of third parties.

In relation to medical information concerning their employees, employers should be aware of:

• Data Protection Act 1998 (DPA 1998)
• Equality Act 2010 (EqA 2010)

DPA 1998 specifies that all personal data held regarding employees must be kept in an organised filing system. Data in relation to health is regarded as sensitive under DPA 1998, meaning that consent must be given by the employee to lawfully process it. Obtaining consent in the above format under AMRA 1998 will be sufficient.

EqA 2010 states that employers cannot discriminate against employees who are disabled. This is defined as ‘a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’. Employers have a duty to make reasonable adjustments in the workplace to accommodate the disability.

An employer can request access to a disabled employee’s medical records to establish whether they need to make reasonable adjustments.