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Use of HIPAA-Protected Personal Health Information by Employer Investigating FMLA Issue for Litigation Not Barred in Eleventh Circuit
Jackson Lewis, via National Law Review Link to more items from this source
Apr. 1, 2014

"[T]he 11th Circuit determined that while HIPAA prohibits the use and disclosure of personal health information in employment-related decisions, it does not bar a defendant in litigation from using the plaintiff's personal health information to defend against that lawsuit. Thus, at least in the 11th Circuit, 'fruit of the poisonous tree' can be used by employers to defend their employment decisions made based on fruit from their HIPAA-covered plans.... [T]he Court seems to gloss over the distinction made in the HIPAA regulations between functioning as a covered entity-health plan and functioning as an employer. The employee was suing the employer in this case, not the plan, and the employer, functioning as an employer, simply should not have had access to this information." [Bailey v. City of Daytona Beach Shores, No. 13-11127 (M.D. Fla. Mar. 20, 2014)]

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