227. "The Limits to Worker Privacy" The New York Times, (December 20, 1992), Sunday Financial page.
You work in a corporate division that processes medical reimbursements. You note that John is going through a new bout of alcoholism. He drives an 18-wheeler for your company. Do you tell the boss?
This question was presented to about 4,000 human resource managers at a recent conference. The panel had little trouble with it. “No way would I let this guy on the road, to kill people,” exclaimed one manager. Said another: “I may not divulge all, but I will find a way to let his supervisor know.” The audience heartily agreed. It voted nearly five-to-one in favor of, in effect, violating the confidentiality of medical records and John’s privacy so as to avoid potential exposure of the company to legal liability and public scrutiny.
The result was different on the next question: you know Jack tested positive for H.I.V. You know he did not tell his girlfriend. Do you inform her? The panel fell curiously silent. When it finally found its ethical tongue, a panelist whispered: “Not on your life.”Another one added, as if self-evident: “There is no way you can tell anybody about that.” Again, the audience agreed.
True, the cases are not completely comparable. While both the driver and the person infected with H.I.V. could cause another’s death, the first would do so using a company vehicle while at work and the other’s acts are rather more private. But more deeply, the different treatment of the two conditions highlights a vast confusion about how strong the rights of employees are and what companies may and may not do.
Open the 188-page book on worker privacy from the Bureau of National Affairs, a nonprofit research service that monitors government rulings, and you find that practically every page contains a confusion of legal cases that actually confound the legal issues. A typical Federal rule that addresses the subject of alcohol abuse states: “Any disclosure made . . . whether with or without the patient’s consent, shall be limited to information necessary in the light of the need or purpose for the disclosure.” That does not exactly settle the matter.
When it comes to companies, the most important consideration seems to be whether there are in-house behavioral guidelines and what they state.
For instance, a worker at the International Business machines Corporation dated a co-worker who eventually went to work for a competitor. She was told to break off the relationship and when she refused, she was fired. She sued I.B.M. successfully not because companies have no right to regulate such relationships, but because, according to the court, I.B.M. guidelines did not explicitly prohibit such relationships and could be read as tolerating them.
We need a systematic moral and legal doctrine as to what are the rights and responsibilities of employees. From my perspective, when misconduct significantly affects work performance, and the employees are forewarned that certain behaviors are taboo, the corporation’s needs should take precedence over the employees’. Additionally, companies should also act a public agents that stop employees who directly endanger others.
However, the employees’ responsibilities toward the corporation after hours should be limited to matters that directly and significantly affect the next working day. Thus, drinking on Sunday becomes corporate business only if the worker cannot function properly on Monday morning. And companies should not be able to infringe on after-hours behavior merely because that might increase health insurance costs.
In short, we can fear companies less than the ominous state, because they have less power and one can quit and join another when one is truly aggrieved (especially when the economy is not in a recession). This does not mean employees should be subject to wanton or capricious controls.