Under the Americans with Disabilities Act, an employer's ability to legally disclose medical information on a reference call turns on whether the medical information was obtained by the employer because the employee voluntarily disclosed the information to his employer, or whether the medical information was obtained by the employer through a medical inquiry that the employer made to the employee.
Question: For a reference call, can I disclose any medical information on the employee if the question comes up?
Answer: Whether an employer may disclose medical information in a reference depends on whether the information is subject to the confidentiality requirements of the Americans with Disabilities Act, or those set forth in any other applicable state laws.
Under the Americans with Disabilities Act, an employer's ability to legally disclose medical information on a reference call turns on whether the medical information was obtained by the employer because the employee voluntarily disclosed the information to his employer, or whether the medical information was obtained by the employer through a medical inquiry that the employer made to the employee. See, e.g., EEOC v. Thrivent Fin., 795 F. Supp. 2d 840 (E.D. Wis. 2011) (holding that the employer was not liable for disclosing an employee's migraine condition in a reference call, as the employee's disclosure was voluntary and not subject to the ADA's confidentiality requirements).
The ADA provides that employers may make "inquiries into the ability of an employee to perform job-related functions," but medical information obtained from such inquiries is subject to specified confidentiality requirements. 42 U.S.C. § 12112(d)(2)-(4) (2006). Therefore, an employer would face liability for the disclosure of information learned in the course of such inquiries. Conversely, "[t]he nondisclosure provisions of the ADA do not govern voluntary disclosures of medical information initiated by the employee." Sherrer v. Hamilton County Bd. of Health, 747 F. Supp. 2d 924, 931 (S.D. Ohio 2010) (citing Cash v. Smith, 231 F.3d 1301, 1307-1308 (11th Cir. 2000); see also Ross v. Advance America Cash Advance Ctrs., Inc., 605 F. Supp. 2d 1025, 1033 (E.D. Ark. 2009); EEOC v. Ford Motor Credit Co., 531 F. Supp. 2d 930, 937 (M.D. Tenn. 2008); Yoder v. Ingersoll-Rand Co., 31 F. Supp. 2d 565, 569 (N.D. Ohio 1997), aff'd with correction, 172 F.3d 51 (6th Cir. 1998); Kingston v. Ford Meter Box Co., Inc., No. 07-CV-270, 2009 U.S. Dist. LEXIS 31710, (N.D. Ind. Apr. 10, 2009); EEOC v. Seven-Eleven of Hawaii, Inc., No. 07 CV 00478, 2008 U.S. Dist. LEXIS 74432, (D. Hawaii Sept. 24, 2008)).
Courts have considered the issue of what constitutes a medical examination or inquiry for purposes of knowing when the ADA's confidentiality requirements apply. The court in Thrivent summarized the inquiry by stating that "[w]hich party initiates the conversation that leads to a disclosure is not relevant; which party initiates or requests the employee's actual disclosure of medical information is determinative." Thrivent, 795 F. Supp. 2d at 845.
Examples of disclosures that were deemed voluntary, and therefore not protected, include the following:
* An employee filed a request for leave with her employer to attend a medical appointment. Upon returning to work earlier than expected, she went to her supervisor's office to adjust her leave form. While there, her supervisor asked, "Is everything okay?" The employee responded by disclosing that she had a lump in her breast and might need a biopsy. This inquiry did not constitute a medical inquiry because the question was not about a medical condition or ability to perform job functions, nor did it require the employee to provide any medical information. Sherrer, 747 F. Supp. 2d at 927.
* An employee informed his supervisor of a medical condition after his supervisor told him he needed to spend more time on the floor of the manufacturing plant. The employee argued that his disclosure was necessary to inform his employer of his disability and request a reasonable accommodation. However, the employee disclosed his condition to the plant nurse and his supervisor before initiating any discussions about a reasonable accommodation. The court held that his disclosure was voluntary and not the result of an inquiry by his employer, as he was not required to make disclosures to either the nurse or his supervisor. Kingston, 2009 U.S. Dist. LEXIS 31710, at *32.
Examples of disclosures that were deemed responsive to medical inquiries, and therefore fell under the ADA's confidentiality provisions, include the following:
* An employee missed work due to an AIDS-related illness. His supervisor sent him a letter warning that he could face disciplinary action for being absent without leave unless he submitted forms explaining "the nature of [his] illness." The letter also indicated that he may qualify for leave under the FMLA, and included the appropriate FMLA forms. The court held that the employee's disclosure on the FMLA form was a response to an employer inquiry and was not voluntary. Although his request for FMLA leave could be considered voluntary on its own, the court saw the requirement that the employee submit supporting medical documents with his request as a medical inquiry. Doe v. United States Postal Service, 317 F.3d 339 (2003).
* An employer required his employee to submit doctors' notes with his requests for leave, providing "the specific nature of [his] illness or injury that prevented [him] from reporting to work." The court held that by requiring these kinds of detailed statements, the employer was making a medical inquiry under section 102(d)(4)(B). Fisher v. Harvey, No. 05-CV-102, 2006 U.S. Dist. LEXIS 57964, *14-15 (E.D. Tenn. Aug. 14, 2006).
In addition to federal statutory violations that may ensue from an employer's disclosure of an employee's medical information, employers should also be wary of violating state statutory or common law.
For example, some states recognize claims for the tort of invasion of privacy based on an employer's disclosure of confidential information. In the case of Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997), the Supreme Court of Colorado affirmed recognition of such a claim in a situation in which an attorney disclosed to his firm's president that he needed to be tested for HIV and requested that the president keep the information confidential. The president nonetheless informed his wife, who was a shareholder of the firm, and two secretaries. The president's wife disclosed the information to an attorney in another of the firm's offices.
The court stated that the requirements of the tort claim were that: "1) the fact or facts disclosed must be private in nature; (2) the disclosure must be made to the public; (3) the disclosure must be one which would be highly offensive to a reasonable person; (4) the fact or facts disclosed cannot be of legitimate concern to the public; and (5) the defendant acted with reckless disregard of the private nature of the fact or facts disclosed." Id. at 377. It noted that the requirement of public disclosure connoted communication to "a large number of persons, rather than . . . a few," however such disclosure could occur where a defendant "merely initiates the process whereby the information is eventually disclosed to a large number of persons." Id. Further, "there is no threshold number which constitutes 'a large number'." Id. at 378. Thus, a circumstance in which an employer discloses information to one or a few references, who then disclose the information further, could result in liability.
State statutes may also dictate terms under which an employer may or may not disclose medical information. For example, California's Confidentiality of Medical Information Act provides that "[n]o employer shall use, disclose, or knowingly permit its employees or agents to use or disclose medical information which the employer possesses pertaining to its employees without the patient having first signed an authorization under Section 56.11 or Section 56.21 permitting such use or disclosure," with several enumerated exceptions. Cal Civ. Code § 56.20(c). "Medical information" is defined as "any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient's medical history, mental or physical condition, or treatment." Id. at 56.05(g). Therefore, as is the case under the ADA, an employer's liability for disclosure may turn on such factors as how the employer came into its knowledge of the medical information at issue.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.