Human Resources News & Insights

A lesson for employers in ADA confidentiality decision

A new ruling on worker confidentiality offers some valuable guidance on just how easy it is for managers to run into trouble with the Americans with Disabilities Act.

Here are the details of the case:

Gary Messier worked as a temp for Thrivent, where he worked for four months without any incident.

But one day in November 2006, Messier didn’t report to work.

Thrivent’s account manager emailed Messier, saying, “…Give us a call. We need to know what’s going on.”

Messier wasn’t in touch until 4:53 p.m. that day, when he emailed his manager and said:

I’ve been in bed all day with a severe migraine. Have not had one this severe in over six years … when I get migraines of this severity I am bed ridden until I can get them to a level so I can function. People have many medical conditions that are not obvious on the surface. I’ve had these migraines since a major car accident in 1984 … At least I am functional most days but when I have one of the severity I had today do not expect any response from me or even a phone call as the pain level is so severe that it puts most people in the hospital … I have been dealing with this pain for a long time and I have found the best way to deal with it is to let it run its course. Probably a lot more than either of you wanted to know but I want to be totally honest with both of you.

Messier quit a month later over a disagreement about job expectations.

Over the next couple months Messier had three employers lose interest in him after conducting reference checks, leading him to guess that Thrivent was giving bad references on him.

So Messier hired an online reference checking agency. A person from that agency called Thrivent and, pretending to be a prospective employer, asked about Messier.

Messier’s former manager said that Messier “has medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the letting us know.”

Who broke the rules?

Messier filed a claim with the Equal Employment Opportunity Commission, alleging disability bias. The agency claimed that Thrivent had violated the Americans with Disability Act’s confidentiality requirement– the ADA protects medical info learned by a company via a job-related injury.

But the court said no way.

The ADA’s confidentiality requirement only applies to medical inquiries. The court found Messier’s manager’s email to him on the day he was absent was not a medical inquiry but simply one where the supervisor wanted to know “what was going on.”

Messier then willingly disclosed his migraine history. Thrivent, the court said, was permitted to re-disclose that under the ADA.

One for the good guys

Employers need to take notice of the court’s narrow reading of ADA confidentiality.

It’s always best to be careful about what health information managers and HR come across and disclose, according to Philip Gordon of Workplace Privacy Counsel:

… disclosing employees’ health information to those without a need to know exposes the employer to the risk that the information will be used improperly and has the potential to create tension and undercut employee morale. To reduce these risks, employers should remind managers who may receive voluntary disclosures of employee health information to limit their disclosure of that information to those with a need to know.

The case is Equal Employment Opportunity Commission v. Thrivent Financial for Lutherans.

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