Your Employer Can Share Your Medical Information
If you work in Illinois, Indiana, or Wisconsin, it just got a little easier for your employer to reveal to others any health care information that you voluntarily offer up.
The 7th U.S. Circuit Court of Appeals on Nov. 20 issued an opinion in EEOC v. Thrivent Financial for Lutherans, taking a narrow reading of the Americans with Disabilities Act’s confidentiality provisions that protect employees’ health information.
Fake Reference Check
In general, the ADA requires that employers keep medical records and information about “medical examinations and inquiries” confidential. But in this case, a consultant’s former employer – Thrivent – got away with telling prospective employers that he had a problem with migraines.
After the employee failed to report to work, he responded to his supervisor’s inquiry about his whereabouts with a long email about how he’d been suffering from migraines since a 1984 accident. He quit his job soon after and started looking for a new one.
Having no luck and feeling suspicious, he hired a reference check agency to pose as a prospective employer and call Thrivent to ask about him. Thrivent told the agency about the former employee’s migraines, and the man filed a complaint with the Equal Employment Opportunity Commission, which in turn filed the lawsuit against Thrivent.
How Employers Get the Info Is Key
The key in this case was the 7th Circuit’s interpretation of the ADA’s confidentiality provisions as only covering information that an employer learns through a “medical examination or inquiry,” explains Donald Schroeder, a lawyer with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. in Boston.
Because the employee in this case voluntarily gave his employer some medical information, the court felt it didn’t fall within the ADA’s protection. “If an employee voluntarily discloses information, the employer should not be held liable under the ADA,” Schroeder says.
While there may be other protections for the confidentiality of an employee’s health information – such as the Health Insurance Portability and Accountability Act (HIPAA), and state privacy laws, according to Melissa Burdorf in a post for XPertHR – none of those would really help in this case, Schroeder indicates.
“HIPAA only protects a small cross-section of personal health information, so I don’t think it will apply in this scenario,” explains Schroeder, who adds that state privacy laws can’t be expected to protect things that an employee voluntarily discloses, especially since he placed no restrictions on the information.
Keep Your Headaches to Yourself
The upshot is that employees need to be very careful about what they voluntarily disclose in the workplace. If the employee in this case had simply responded by saying, “I’m sorry I didn’t make it in today – I’m not feeling well,” there likely wouldn’t have been a problem.
Schroeder says that there’s no special loophole created by this opinion. Employers are still limited by the ADA in terms of what they can ask an employee about his health. Still, this employer had to defend its actions in court, so many lawyers are warning employers to tread carefully around information they receive from employees in the wake of this opinion.
Employees, too, can draw a lesson from it. “Employees should be careful about what they reveal to co-workers and also exercise some caution on social media websites when they post messages which can be seen in the public view,” warns Schroeder.