The privacy of email in the workplace

On January 13, 2011,  Court of Appeals decision in the Third District, Court of Appeals, Sacramento ruled that email between a client and their attorney while performed at the work site and using the employer’s computer may not be considered “privileged communication”.

The significance for doctors means that is doctors who want to monitor their employees’ computer email or activity may do so as a rightful activity of an employer. However, since this decision only applies to California residents, doctors in other jurisdictions should consult with an attorney in their state to to see if their state has any additional requirements or isn’t covered by this legal judgement.

Activity by employees have always been a concern to doctors’s office, but it is more of a concern of productivity rather than release of confidential data.  Nationally, the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) also covers the actions of employees in how they communicate with others.

Doctors should note the following excerpt from the decision “….The handbook directs employees that the company’s technology resources should be used only for company business and that employees are prohibited from sending or receiving personal e-mails. Moreover, the handbook warns that “[e]mployees who use the Company’s Technology Resources to create or maintain personal information or messages have no right of privacy with respect to that information or message.” The “Internet and Intranet Usage” policy in the handbook specifically states, “E-mail is not private communication, because others may be able to read or access the message…”

This excerpt explicitly states the kind of language that an employee handbook should contain for office computer email usage. Doctors  should understand that employees may still use their own smart phones to send email and may avoid the pitfalls of this judgement.

Source: GINA M. HOLMES, Plaintiff and Appellant, v. PETROVICH DEVELOPMENT COMPANY, LLC, et al., Defendants and Respondents. No. C059133.

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About Richard Hom OD, MPA

Dr. Hom holds Doctor of Optometry and Masters in Public Administration degrees and practices family eye care and consults on public policy, health information technology and program evaluation.
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