MEDICAL PRIVACY QUIZ

An employee informs her manager that she will need some sick leave because of pending knee replacement surgery.  Her supervisor passes on that information on to her supervisors so that they are aware of a potential need to reassign the absent employee’s work.  Has the Americans With Disabilities Act or Rehabilitation Act been violated?

To begin its decision the EEOC reminded readers that Title I of the Americans with Disabilities Act of 1990 (ADA) requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. These requirements also extend to medical information that an individual voluntarily discloses to an employer. These requirements apply to confidential medical information from any applicant or employee and are not limited to individuals with disabilities. The ADA and its implementing regulations list the following limited exceptions to the confidentiality requirement:

(1) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(2) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(3) government officials investigating compliance with this part shall be provided relevant information on request.

EEOC has also interpreted the regulation to allow employers to disclose medical information (4) to state workers’ compensation offices, state second injury funds, workers’ compensation insurance carriers, and to health care professionals when seeking advice about reasonable accommodation determinations

Against that background of law, regulation and case precedent, the EEOC concluded that the first line managers violated the employee’s statutory right to medical information privacy.  It explained that the first line supervisor could have informed the next higher level of supervision of a need to cover for the absent employee without revealing the nature of the employee’s medical condition.

While there was no back pay for the employee, the EEOC ordered the agency to conduct an investigation into whether the employee should receive compensatory damages.  It also ordered it to pay the employee’s reasonable attorney fees, which I hope all FEDSMILL.com readers now realize can be many, many times more expensive than back pay and damages to the employee.  For even more detail, check out Haydee A., Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120132668.