Colombia: The EPS cannot order employers to provide the medical records of their employees to process incapacity to work

The Ministry analyzed the different regulations of the Colombian legal system to contextualize its position. As it pointed out, article 34 of Law 23 of 1981 establishes that medical records are compulsory for a patient’s health and also considered as a private document. Furthermore, medical records are reserved and can only be provided to third parties with the patient’s prior consent in the cases regulated by law.

Article 14 of Resolution 1715 of 2005 also regulates the cases in which third parties can be authorized to have access to medical records. They include the user, the medical team and the judicial and health authorities, but not employers. The same article states that only authorized persons can consult all medical records and obtain a copy thereof, free of charge.

The Resolution also points out that, pursuant to Judgment T-158 A of 2008, the Constitutional Court ruled that the reserved nature of medical records is based on every individual’s right to privacy: “The reserved nature of medical records is therefore based on the need to protect an individual’s right to privacy with regard to information that, in theory, only concerns him/her and, therefore, should be excluded from public domain”.

This announcement by the Ministry of Health and Social Protection is extremely important, given that on many occasions employers cannot initiate proceedings such as the termination of a disabled person’s contract or an application for classification of the loss of the capacity to work, without such documents.

In our opinion and in light of the provisions of the resolution, the administrative bodies in charge of such proceedings cannot require employers to submit medical records, as they are not entitled to do so. It is therefore sufficient for employers to request the worker’s consent and include a note of his/her refusal.