privacy employment employer health-insurance hipaa
Can an employer ask an employee about personal health matters (HIPAA) and COBRA decision in public?
<p><strong>Hypothetical Scenario (in the US):</strong></p>
<p>Susan's employer, MoneySavers, offers COBRA to employees who separate from the company. Susan has given her two weeks' notice (she has quit her job) and will soon have her last day. She works in an open office without cubicles and little conversational privacy.</p>
<p>Susan asks Emily, an HR representative (at Emily's desk) how/when Susan might receive COBRA paperwork. Susan expects to hear something like, &quot;You'll receive it in the mail within 4 weeks.&quot;</p>
<p>Instead, Emily responds, &quot;Are you planning on using COBRA?&quot;</p>
<p>Emily continues, &quot;You have to elect if you are going to use COBRA,&quot; with the implication that Susan needs to answer &quot;yes&quot; or &quot;no&quot; immediately.</p>
<p>Several co-workers hear the conversation and add their own comments. One co-worker, Mike, the CFO, who arranged MoneySavers COBRA program, adds, &quot;Susan, no former employee would ever plan to use COBRA.&quot;</p>
<p>Susan admittedly could have tried to make her conversation more private and her co-workers could have been more prudent in their comments. However, were any laws violated here?</p>
<p>Specifically, was it lawful for Emily to ask Susan, before she has left MoneySavers, if she will elect to use COBRA?</p>
<p>If it were lawful for Emily to ask, would it need to be asked in a private setting? What other legal issues are at play in this situation?</p>
<p><strong>Financial (Not Legal) Factors:</strong></p>
<p>Susan is still employed and thus could be treated differently in her last two weeks depending on how she responds because MoneySavers cuts costs whenever possible.</p>
<p>More context: In this specific scenario, MoneySavers may incur costs if an employee elects COBRA because of a health reimbursement (HRA) program it offers.</p>
<p>Financial question: Does anyone know if an employee elects COBRA, and then incurs a large claim while on COBRA, could increase MoneySavers health insurance renewal rate for the next year? Normally, health insurance claims made by current employees can increase MoneySavers health insurance renewal rate.</p>

<p>It's probably not unlawful to ask, but an answer cannot be <em>required</em> immediately.</p>
<p>Per the <a href="https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/an-employees-guide-to-health-benefits-under-cobra.pdf" rel="nofollow noreferrer">Department of Labor</a>, Susan has 60 days to elect COBRA coverage (the qualifying event here being the termination of Susan's employment):</p>
<blockquote>
<p>Your plan must give you at least 60 days to choose whether or not to elect COBRA coverage, beginning from the date the election notice is provided or the date you would otherwise lose coverage under your group health plan due to the qualifying event, whichever is later.</p>
</blockquote>
<p>It would be unlikely for an employer to discourage an employee from electing COBRA coverage due to costs to the employer, as you suggest:</p>
<blockquote>
<p>Susan is still employed and thus could be treated differently in her last two weeks depending on how she responds because the company is struggling financially and is looking for every opportunity to save money.</p>
</blockquote>
<p>Susan electing to use COBRA coverage is unlikely to cost the company money, because the employer is <a href="https://www.bizfilings.com/toolkit/research-topics/office-hr/what-is-cobra-what-employers-need-to-know" rel="nofollow noreferrer">permitted to charge her the entire cost of the coverage, plus 2 percent to cover the cost of administering it</a> (<a href="https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/faqs/cobra-continuation-health-coverage-for-employers.pdf" rel="nofollow noreferrer">additional DoL source</a>).</p>
<p>As far as privacy goes, I don't think anything illegal has occurred here.  The most prevalent law regarding privacy of health information, HIPAA, <a href="https://ogletree.com/insights/what-all-employers-need-to-know-about-protecting-employee-health-information/" rel="nofollow noreferrer">generally does not apply to employers</a>.  Susan could, of course, request a private discussion, and any response from Emily could not rise to the level of illegal harassment or create a hostile work environment.</p>

<p>First of all, Susan has 60 days after her employment ends to accept or reject COBRA coverage. Emily should not press for a response, and must tell Susan that she has this time. Emily may give general information in public if she so chooses, but should not discuss anything specific to Susan's situation in public unless Susan gives unforced consent to this.</p>
<p>It is at least unethical, and possibly unlawful, for the CFO or other superiors who might be in a position to influence her work conditions or post-work recommendations to try to influence her decisions.</p>
<p>In every company where I have worked, all discussions on COBRA and related issues have been in a private ONE-ON-ONE discussions, and accompanied or followed by written detailed info.</p>
<p>Under HIPPA, any discussion of a person's personal health situation must be private unless the person consents to them being made public.</p>
<p>The kind of discussion described in the question would in my view be highly improper.</p>
