Employers fault court ruling on medical records

The Federation of Kenya Employers headquarters in Nairobi . Photo/FILE  NATION MEDIA GROUP

By David Herbling

In Summary

• Kenyan employers have faulted a recent court ruling that bars them from accessing their employees’ medical records saying the judgement, though appearing to safeguard the right to privacy, would ultimately hurt the workers
• The Federation of Kenya Employers (FKE) said the judgement, delivered against a Nakuru-based company, would make it difficult for companies to buy comprehensive group medical covers for workers because of pricing challenges in the absence of reliable medical records
• Insurers said failure to provide such data would make it difficult to offer employers premium benefits, including cover for congenital diseases and chronic conditions such as HIV/Aids

Kenyan employers have faulted a recent court ruling that bars them from accessing their employees’ medical records saying the judgement, though appearing to safeguard the right to privacy, would ultimately hurt the workers.

The Federation of Kenya Employers (FKE) said the judgement, delivered against a Nakuru-based company, would make it difficult for companies to buy comprehensive group medical covers for workers because of pricing challenges in the absence of reliable medical records.

“The real impact of this judgment is that employers will increasingly find it difficult to buy insurance for their employees,” said Jacqueline Mugo, the FKE chief executive.

“It is the worker who will suffer because employers are only able to buy enhanced group medical cover upon provision to the insurer of employee medical reports,” she said even as she urged employers to ensure confidentiality of employee medical records.

Insurers said failure to provide such data would make it difficult to offer employers premium benefits, including cover for congenital diseases and chronic conditions such as HIV/Aids.

The insurers said that in the absence of reliable medical records, company-sponsored medical schemes risk dilution of entitlements – a reality that would only hurt the workers.   

Industrial Court judge Byram Ongaya barred employers accessing workers’ medical records in a landmark decision in favour of a man who had sued Nakuru-based Spin Knit for attempting to forcefully subject him to a medical test and using his refusal to undergo the test as ground to terminate his employment.

The court ruled that the constitutional right to privacy entitles employees not to disclose their health status to third parties, including their employers, meaning thousands of employers who routinely subject prospective employees to mandatory tests or snoop on their medical records are in breach of the law.

“The court’s considered opinion is that it is unfair for an employer to intrude into the health status of the employee or prospective employee in a manner that does not justify breaches of the doctor-patient confidentiality,” said judge Ongaya in the October 4 decision.

The court found that it is unlawful for an employer to force a worker to undergo medical examination or present medical reports that expose health information the employee is entitled to hold in his or her privacy.

In circumstances where an employee’s medical report is required to process benefits such as medical cover or make decisions on the worker’s employment, the medical report should be strictly confidential, the judge said.

“It is vital that the employer highly restricts the disclosure of the medical reports and holds it in high confidence that protects the employee’s privacy and therefore human dignity.”

In cases where one’s medical report is a pre-requisite for employment, such as persons handling food, the doctor should only provide a summary report on the employee’s fitness and not a detailed report.

“It is sufficient for the employer to receive the doctor’s certificate of fitness without disclosing the full medical report that infringes the employee’s or prospective employee’s health status.”

The judge consequently ordered Spin Knit to pay the claimant Sh500,000 in damages for ‘unconstitutional and unjustified’ intrusion into his private health status.