Peacock Tales • Summer 2013


Employers: Careful What You Say?

By Barbara Graham

Employers with at least fifteen employees should be aware of their obligation to maintain the confidentiality of their employees’ medical records, by segregating these records from all other employment records, and by refraining from discussing employees’ medical conditions. Otherwise, employers risk liability for violation of the Americans with Disabilities Act’s (ADA) prohibition on improper disclosure of medical information obtained through “a medical examination and inquiry.” The Equal Employment Opportunity Commission (EEOC) has a history of aggressively prosecuting these types of claims.

In a decision issued last fall, the Seventh Circuit Court of Appeals rejected the EEOC’s effort to significantly expand employers’ liability under the ADA, with respect to employees’ medical information. In EEOC v. Thrivent Financial for Lutherans, the Court reviewed the dismissal of a lawsuit initiated by the EEOC alleging that Thrivent unlawfully disclosed confidential employee information. An employee failed to report to work one day and did not report his absence. His supervisor contacted him, and asked him what was going on. The employee at the end of the day, for the first time, indicated that he had for some time been suffering from debilitating migraines. Subsequently, he resigned.

When the employee could not find new employment, he investigated, and learned that Thrivent was telling prospective employers that he suffered from migraines and did not call in when they caused him to be absent. The employee contacted the EEOC, which ultimately filed a lawsuit alleging a violation of the ADA’s prohibition against revealing medical information obtained from “medical examinations and inquiries.” The trial court rejected this claim, holding that the employee’s report that he suffered from migraines was not the result of a “medical examination or inquiry.”

The EEOC appealed, abandoning its argument that the inquiry was a “medical inquiry” and instead contended that the ADA’s confidentiality provisions protected all employee medical information obtained through “job related” inquiries.

The Court of Appeals rejected the EEOC’s interpretation, confirming that the statute afforded confidential status only to information resulting from inquiries of a medical nature. Asking an employee to explain his absence from work is not a medical inquiry; the employee could have identified a myriad of non-medical reasons for his absence. The Court noted, even when the employee’s response provides medical information, the plain language of the ADA treats it as confidential only if it was provided in response to a clear request for medical information. When an employee is simply asked to account for his whereabouts there is no entitlement to confidentiality.

There are three important lessons here. First, the EEOC’s interpretation of the ADA evidences its continuing interest in expanding the reach of civil rights statutes. Second, it is not completely clear that Thrivent would have succeeded, if the inquiry had been made after the employer already knew of the employee’s medical condition. Finally, the importance in maintaining the confidentiality of employee medical information cannot be exaggerated.

While Thrivent was successful, it undoubtedly paid a significant price for the result. Consequently, we continue to urge employers to keep employee medical information in a separate, secure file and not to disclose it to third parties, regardless of how it was obtained.


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