[author: Melissa Burdorf, XpertHR Legal Editor]
Many times, in particular with the advent of social media, employers receive information regarding an employee's medical condition from various sources and are unsure how that information should be treated. In a recent decision, EEOC v. Thrivent Financial for Lutherans, +2012 US App. Lexis 23821, the 7th Circuit clarified the scope of the Americans with Disabilities Act (ADA)'s confidentiality provisions. In doing so, the court rejected the EEOC's contention that the ADA requires employers to keep all employee medical information learned by an employer in response to a job-related inquiry or question confidential - including medical information voluntarily disclosed by an employee in response to a non-medical inquiry. Instead, the court made clear that the ADA only protects certain employee health information which employers receive during the course of the employment relationship.
The case itself originated from a common situation - an employee failed to report to work and a supervisor inquired into the employee's whereabouts. In response to the inquiry, the employee sent an unsolicited lengthy email about his alleged medical condition (migraines). Shortly after this email was sent, the employee quit his job and sought new employment. After struggling to land a job, the employee suspected that his former employer was supplying a negative job reference. The employee then hired a reference check agency to pose as a prospective employer. When the reference agency contacted the former employer and the former employer disclosed the employee's medical condition, the litigation began.
Siding with the employer, the 7th Circuit stated that the ADA's confidentiality provisions did not apply to this type of generalized job-related inquiry and instead only applied to medical inquiries or examinations (i.e. when the employer asks about an employee's medical condition or asks questions about the severity of the employee's condition). Therefore, when the employee voluntarily informed his employer that he had migraines, he was merely responding to his employer's inquiry into his whereabouts and not a request for medical information.
Accordingly, the court determined that the employer did not have a duty to treat its knowledge of the employee's migraine condition as a confidential medical record, explaining that - at a minimum - the employer would need to know that something was medically wrong with an employee prior to communicating with the employee in order for the communication to rise to the level of a medical inquiry under the ADA. Here, the employer did not have this knowledge.
Although this decision helps clarify the scope of an employer's confidentiality obligations it does not give employers a green light to be careless with an employee's medical information - even if it is not protected under the ADA. Certain state privacy laws and HIPAA may still apply to this information. In addition, even if the law does not provide an employee with a layer of protection, employers should consider employee morale and trust issues that could result from such disclosure.
To lessen an employer's risk to this type of litigation, employers should:
Prepare their managers and supervisors who are on the frontline, and who may receive voluntary disclosures of employee medical information, to limit their disclosure of that information to those with a need to know;
Develop guidelines on what is considered confidential information, which employees can have access to that information, and how such information will be securely stored. Employers should implement measures to safeguard medical, private and confidential information. These steps can help ensure that those who do not have a legitimate need to know cannot gain access to the information; and
Consider implementing a neutral reference policy. Meaning, in response to reference requests, employers will only provide factual, neutral information such as employees' dates of employment, title and salary history. Employers should also advise supervisors of the employer's policy regarding providing references and encourage them to forward all reference requests to the HR department.
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