Can you check your employees’ medical records?

The biggest headache for the HR department is the fake sick leave, such as, an employee went to a hospital and registered for an appointment with the doctor, however, he left after got the registration receipt; an employee brought a fake sick leave certificate; or an employee asked for sick leave regarding his back pain continually. In order to eliminate the fake sick leave, many enterprises require employees to submit documents related to sick leave in their rules and regulations. Those documents including registration receipts, sick leave certificates, medical records, drug lists, inspection reports, hospitalization summaries, etc., by which the HR department could verify the authenticity of a sick leave.

However, since the implementation of the “Personal Information Protection Law” on November 1, 2021, many employees refuse to provide those documents with the excuses as “personal privacy” and “personal sensitive information”. On the contrary, employers hold that those documents shall be provided as the supplementary proof for the application of a sick leave from the perspective of HR management. This is a conflict between the employer’s right to approve the application of a sick leave, and the protection of employee’s personal information. In practice, this conflict becomes a critical dispute.

We can not settle this dispute right now, but we can take the judicial opinions for reference while dealing with such dispute.

In the case (2021) Jing 03 Min Zhong No. 106, X is the employee who submitted a diagnosis certificate and a sick leave certificate regarding the disease of depression, and he refused to provide all medical documents as required by the company. The Beijing Third Intermediate People’s Court held that, employers could require employees to provide medical documents, such as medical records, psychological reports, cost vouchers, etc., however the scope should be limited to necessary; X had submitted the diagnosis certificate and the sick leave certificate which could prove that he needed a sick leave; in addition, only when X applied for an extension of the medical period, the company could request him to provide further medical documents.

In the case (2022) Hu 01 Min Zhong No. 11917, G was hospitalized due to work-related injuries on January 10, 2019. From July 2019, the company notified him five times to undergo labor capacity appraisal, but he refused to cooperate. On April 30, 2020, the rehabilitation hospital issued six sick leave certificates for the period from February 27th to April 29th, but some of the certificates were signed off on the date that G had notified the company that he would go to another city for mourning. During this period, in accordance with internal rules and regulations, the company also repeatedly requested G to submit medical documents, such as hospitalization summaries and etc., but G refused to provide on the grounds of personal privacy. The Shanghai First Intermediate People’s Court held that, it is reasonable for the company to request G to provide hospitalization summaries, by which, the company could determine the duration of hospitalization; and it is reasonable for the company to request G to provide other medical documents, because G was not in Shanghai on the issuance date of several sick leave certificates and the company had reasonable suspicions.

In view of the above cases, we can summarize a fundamental rule of those judicial judgments, that is, the scope of medical documents shall be limited to a “necessary to know” scope. If a company could determine that an employee needs a sick leave upon the review of the diagnosis reports and sick leave certificate, then normally, it shall not request for further medical documents. If a company could not verify the authenticity of a sick leave, or it finds any contradictions, it could request for more medical documents for further verification.

Back to the question in the beginning, if a company has listed medical documents which shall be provided for the application of a sick leave in the Employee Handbook or internal rules regarding the management of a sick leave, whether such provisions shall be deleted after the implementation of the “Personal Information Protection Law”? We tend to support the opinion that such provisions could be kept, because the medical documents for the application of different sick leaves are varies. In addition, the “necessary to know” principle requires HRs to select medical documents more wisely and reasonably. If any employee provides too little information, it is recommended to require him\her to add some medical documents instead of all medical documents as listed in the internal rules and regulations.