WHAT SHOULD NOT HAPPEN WHEN YOU CALL IN SICK
I’ll bet that what happened in this recent case is very, very common. An employee, Jade, called in to say she needed to be hospitalized due to stomach pains and needed an appointment she had scheduled for that day reassigned. A supervisor (OS) other than the employee’s own took the call and told the employee’s mentor (CTE) about the stomach pains. And then she shared the information with another supervisor. The mentor told two other non-supervisory employees, who then called Jade. Jade filed a discrimination complaint alleging that sharing her medical information violated the Rehabilitation Act and EEOC just ordered the agency to figure out how big of a check to send her for that violation. Here is why.
29 C.F.R. § 1630.14(c)(1) provides that: “Information obtained… regarding the medical condition or history of any employee shall . . . be treated as a confidential medical record, except that: (i) [s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodation.” Although not all medically-related information falls within this provision, documentation or information of an individual’s diagnosis is without question medical information that must be treated as confidential except in those circumstances described in 29 C.F.R. Part 1630. EEOC noted that information about an individual’s diagnosis or symptoms is viewed as confidential medical information. As such, improper disclosure would constitute a violation. (For any supervisor’s reading this, the best approach is to take the employee’s word for it that they need a sick day, unless there is a question of sick leave abuse.
The Agency does not dispute that OS included “stomach pain” in her statement to CTE. Further, CTE was not in Jade’s supervisory chain and was not on a need-to-know basis regarding Complainant’s condition. The supervisor who took Jade’s call only needed to advise CTE that Complainant would not be in and that her appointment needed to be reassigned. Additionally, the record demonstrates that the coworkers, who were not in Jade’s supervisory chain, learned of her condition due to OS’s disclosure. The fact that she included information about Jade’s condition to a person who did not have a need-to-know made this a violation of the Rehabilitation Act.
Given how common this likely is, unions should alert their members that when they call in they need not share their diagnosis, treatment, or prognosis information unless there is a need to discuss necessary restrictions on the work or duties of the employee and necessary accommodation. If they are forced to and that information is passed on to others, they too may be entitled to a check for the violation of their privacy. Another step the union could take is to work with management to send out an alert to all supervisors driving home what they can and cannot do when an employee calls in sick.
You can find this case as Jade B. v. Kilolo Kijakazi, SSA, EEOC No. 2023003875 (2023)
We have written about this many times before in posts such as
