Employment Law Updates
Employers often receive subpoenas to produce an employee’s personnel records.  These subpoenas are frequently issued in cases involving divorce, custody or support disputes or personal injury cases, but are used in many other types of disputes.  Employers must be careful, however, because the federal HIPAA law and Virginia Code § 32.1-127.1:03 place restrictions on the dissemination of health or medical records.  Those records should be kept separate from other personnel records, but the subpoena request might be broad enough to require their production.Employers often receive subpoenas to produce an employee’s personnel records.  These subpoenas are frequently issued in cases involving divorce, custody or support disputes or personal injury cases, but are used in many other types of disputes.  Employers must be careful, however, because the federal HIPAA law and Virginia Code § 32.1-127.1:03 place restrictions on the dissemination of health or medical records.  Those records should be kept separate from other personnel records, but the subpoena request might be broad enough to require their production.

The Virginia Code section requires that any subpoena which would involve the production of health or medical records must contain certain language notifying the recipient that they must wait 15 days before producing those records, and allow the employee to file a motion to quash the subpoena.  If the motion to quash is filed, then there is a procedure for sending the records to the clerk of court.   If no motion to quash is filed within the 15 days, the party requesting the subpoena must then send written certification that no motion to quash was filed, or that any motion was resolved by the court.  The employer may not produce the health or medical records until receiving that certification.The Virginia Code section requires that any subpoena which would involve the production of health or medical records must contain certain language notifying the recipient that they must wait 15 days before producing those records, and allow the employee to file a motion to quash the subpoena.  If the motion to quash is filed, then there is a procedure for sending the records to the clerk of court.   If no motion to quash is filed within the 15 days, the party requesting the subpoena must then send written certification that no motion to quash was filed, or that any motion was resolved by the court.  The employer may not produce the health or medical records until receiving that certification.

PLDR Law John Falcone 1

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