Personal health information, including mental health records, is some of the most sensitive and well-protected knowledge during the majority of background screenings. Employers are subject to legal restrictions regarding the type of health information they can request and obtain from an employee, but certain mental health records are not as private when gun laws come into play.
In the last decade, most states have amended or created legislation that has enhanced the sharing of mental health records in the “federal criminal background check database.” In fact, the number of available records in the National Instant Criminal Background Check System (NICS), the system federally-licensed gun retailers use to screen buyers, has nearly tripled in recent years due to the aforementioned changes in state laws. In the past, the availability of mental health records in NICS has been minimal and irregular, causing concern among gun control advocates who wanted to improve record sharing in the hopes of decreasing gun acquisition and violence.
Though federally-licensed firearms retailers conduct about 60% of firearms sales, individual states determine the efficiency of how they share their respective mental health records. Additionally, the only records that enter NICS and prohibit an individual from purchasing a gun from federal institutions must meet the following criteria determined by a court of law:
- The individual must have been “adjudicated as a mental defective,”
- or, the individual must have been “committed to a mental institution” (on an involuntary basis).
Therefore, only mental health records that a court has decided prove an individual is a threat to him/herself and/or others and meet the preceding criteria exist within NICS, and only if the state decides to acquire legislation that makes sharing those records comprehensive.
Job seekers and employees do not have to worry about their mental health records affecting their background screenings in the same way that gun buyers do. HIPPA laws protect medical information (which includes mental health information), and the majority of employers cannot request access to an employees medical information. Even if an employer has a valid reason for needing to know certain aspects of an employee’s health records (i.e. needing a sick note for missed time, dealing with worker’s compensation, and/or other legal matters that involve employee health issues), individuals must authorize the release of their personal health information.
The federal and state laws regarding mental health background screenings exist to prohibit violent individuals from accessing dangerous materials, not for employers to gain access to private and protected information.