ADA & Confidentiality: Who’s on my party line?
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Lauren Lowe, Staff Attorney, Equip for Equality
What can be asked at different stages of the employment process?
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Pre-offer: Employer cannot ask disability-related questions or require applicants
to undergo a medical examination. Employer can, however, ask applicants to
demonstrate how they would perform specific job tasks.
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After a conditional offer: Employer may ask disability-related questions and
require medical examinations if done for all entering employees in that job
category. If employer rejects applicant after disability-related question or medical
examination, the reason for the rejection must be “job-related and consistent
with business necessity.”
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After employment starts: Disability questions and medical examinations must
be “job-related and consistent with business necessity.”
Statute – Medical Examinations and Inquiries: 42 U.S.C. § 12112(d)(4)
(A) Prohibited examinations and inquiries. A covered entity shall not require a
medical examination and shall not make inquiries of an employee as to whether
such employee is an individual with a disability or as to the nature and severity
of the disability, unless such examination or inquiry can be shown to be jobrelated and consistent with business necessity.
(B) Acceptable examinations and inquiries. A covered entity may conduct voluntary
medical examinations, including voluntary medical histories, which are part of an
employee health program available to employees at that work site. A covered
entity may make inquiries into the ability of an employee to perform job-related
functions.
Italicized language is discussed below and is the most litigated aspect of confidentiality
provisions
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What are the confidentiality protections? (42 U.S.C. § 12112(d)(4)(C))
Information obtained under subparagraph (B) (acceptable examinations and inquiries)
regarding the medical condition or history of the applicant must be collected and
maintained on separate forms and in separate medical files and is treated as a confidential
medical record, except that—
“Need-to-Know” exceptions
(i) supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary
accommodations;
(ii) first aid and safety personnel may be informed, when appropriate, if the
disability might require emergency treatment; and
(iii) government officials investigating compliance with this Act shall be
provided relevant information on request; and
(C) the results of such examination are used only in accordance with this
title.
EEOC guidance on responding to questions from coworkers about an employee’s
accommodations: “An employer may not disclose that an employee is receiving a
reasonable accommodation because this usually amounts to a disclosure that the
individual has a disability. The ADA specifically prohibits the disclosure of medical
information except in certain limited situations, which do not include disclosure to
coworkers. An employer may certainly respond to a question from an employee about why
a coworker is receiving what is perceived as "different" or "special" treatment by
emphasizing its policy of assisting any employee who encounters difficulties in the
workplace. The employer also may find it helpful to point out that many of the workplace
issues encountered by employees are personal, and that, in these circumstances, it is the
employer's policy to respect employee privacy. An employer may be able to make this
point effectively by reassuring the employee asking the question that his/her privacy would
similarly be respected if s/he found it necessary to ask the employer for some kind of
workplace change for personal reasons.” Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the ADA.
Are prohibited examinations and inquiries protected? Statute says the confidentiality
provisions apply to “information obtained under subparagraph (B) (acceptable medical
examinations and inquiries). If an employer requires an employee to submit to a medical
examination that is unlawful (i.e. not job-related and consistent with business necessity), does the
ADA allow employers to disclose the results of a prohibited inquiry?
One court, in dicta, has said no
 “The ADA does not explicitly state that information obtained as a result of an illegal
inquiry must be kept confidential. . . . However, it would hardly fit within the stated
purpose of the ADA . . . if the statute gave cover to employers who did not keep
employee medical information confidential on the grounds that the employers had
no right to demand the information in the first place.” EEOC v. Ford Motor Credit
Co., 531 F. Supp. 2d 930, 940 (M.D. Tenn. 2008).
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Who is Protected?
1. An applicant or employee does not have to meet the ADA’s definition of
disability to claim the confidentiality protections.
 Unlike other ADA provisions, 42 U.S.C. § 12112(d)(4) speaks of “applicants”
and “employees,” not “qualified individuals with disabilities.”
 “It makes little sense to require an employee to demonstrate that he has a
disability to prevent his employer from inquiring as to whether or not he has a
disability.” Doe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221,
1229 (10th Cir. 1997).
2. But, do have to show tangible injury
 Tangible injury does not have to be economic (e.g. termination or inability to find
subsequent employment)
 Injury can be emotional (e.g. harassment).
 “[S]hame, embarrassment, and depression as a result of the disclosure” are
tangible injuries. EEOC v. Ford Motor Credit Co., 531 F. Supp. 2d 930, 941
(M.D. Tenn. 2008)
Inability to find another job as proof of confidentiality violation?
 Inability to obtain another job, standing alone, may not be enough to create inference
that former employer disclosed confidential medical information. McPherson v. O’Reilly
Auto., Inc., 491 F.3d 726, 732 (8th Cir. 2007).
What Situations Trigger the Confidentiality Protections?
1. Employee voluntarily submits to medical examination as part of an employee health
program available at the work site; or
2. Employer makes inquiry into the ability of an employee to perform job-related
functions.
What is an “inquiry into the ability of an employee to perform job-related
functions”?
Easy example: employer requires employee to submit to fitness-for-duty examination or
makes explicit demand for medical information
 Cripe v. Mineta, No. 03-2206, 2006 U.S. Dist. LEXIS 44398 (D.D.C. June 29,
2006)
 Attorney for employee with HIV sent letter describing employee’s health
problems to support accommodation request
 Letter ended up on an supervisor’s desk without envelope or cover sheet
 Another supervisor admitted misplacing; another admitting not segregating
 Employer made “inquiry” about employee’s ability to perform job by demanding
additional information to support accommodation request
 Fact issue on whether employer violated ADA confidentiality provisions
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Where to look for guidance on what constitutes an “inquiry”?
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations
 EEOC defines “disability-related inquiry” as a “question (or series of questions)
that is likely to elicit information about a disability.”
EEOC’s position is that even if the employee voluntarily discloses the information,
the employer must keep confidential
 No court has adopted the EEOC’s position
 Several courts have not followed the EEOC’s broad definition of disability-related
inquiry
What do courts think is an inquiry? Did employer or employee initiate disclosure?
Voluntary or Involuntary?
Example 1: Employee tells supervisor “in confidence” that she has diabetes;
supervisor tells other employees?
 Not protected: voluntary disclosure
 Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000).
Example 2: Employee tells supervisor she needs time off to obtain medication for
recently diagnosed bipolar disorder; supervisor tells other employees of diagnosis?
 Not protected: voluntary disclosure
 Ross v. Advance Am. Cash Advance Ctrs., 605 F. Supp. 2d 1025, 1033 (D. Ark.
2009).
 Question: how can employees request reasonable accommodations and still
claim ADA confidentiality protection?
Example 3: Employee has breast biopsy. Comes into work and, while she’s filling
out form re: unrelated medical appointment, supervisor asks, “Is everything okay?”
Employee says no and tells supervisor about biopsy. Supervisor tells others.
 Not protected : voluntary disclosure
 Sherrer v. Hamilton Cnty. Bd. of Ed., No. 1:09cv266, 2010 U.S. Dist. LEXIS
100614 (S.D. Ohio Sept. 24, 2010).
 Rejected employee’s argument that she interpreted “is everything okay?” as an
inquiry into her medical condition and ability to perform her job
 Employer did not condition FMLA or ADA entitlements on disclosure
 Summarizes case law: “Courts have allowed claims of illegal disclosure of
confidential medical information to proceed . . . when . . . a supervisor probed
an employee for medical information or conditioned the employee’s job
accommodation or medical leave on the employee’s provision of medical
information to the supervisor. When the employee has volunteered the
information to a supervisor absent a request for medical information, courts have
granted summary judgment to the defendant.”
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Example 4: Supervisor tells employee that he must spend more of his shift on the
plant floor. Employee informs supervisor that he has COPD. Later has meeting with
supervisor and company nurse to discuss accommodations. Employer shares
condition with coworkers.
 Not protected: voluntary disclosure
 Kingston v. Ford Meter Box Co., No. 3:07-cv-270, 2009 U.S. Dist. LEXIS 31710
(N.D. Ind. Apr. 10, 2009).
 Court held disclosure was not in response to employer inquiry about ability to
perform job functions
 Timing was key – PWD disclosed before actual meeting to discuss
accommodations
 “That [plaintiff] was in the midst of invoking his statutory rights doesn’t transform
a voluntary disclosure into one that resulted from an employer inquiry. [Plaintiff]
wasn’t required to make the initial disclosure…”
 Questions: Overly technical approach to timing? What could employee have
done differently?
Example 5: Employee (medical technician) experiences panic attack at work.
Diagnosed with bipolar disorder and gives doctor permission to inform supervisor.
When employee returns to work, coworkers know of her diagnosis.
 Not protected: voluntary disclosure
 Wiggins v. DaVita Tidewater, LLC, 451 F. Supp. 2d 789 (E.D. Va. 2006)
 Information not obtained from an “employee health program or employermandated medical examination.”
 Question: is “employer-mandated medical examination” what statute says?
Example 6: Employee submits medical form sent by supervisor after employee has
been absent from work due to illness?
 Protected - employer inquiry, not voluntary employee disclosure
 Doe v. USPS, 317 F.3d 339 (D.C. Cir. 2003).
 Employee had missed weeks of work due to AIDS-related illness
 Supervisor sent letter instructing employee to complete form explaining “nature
of the illness”
 Letter said employee might qualify for FMLA benefits
 Employee’s doctor completed form and disclosed employee’s diagnosis
 Court: letter was an employer inquiry that triggered confidentiality protections
 USPS conditioned FMLA entitlement on disclosure of HIV
 Employee did not initiate disclosure; he disclosed only after employer told him
that he faced discipline unless he explained
 Court would not “force employees to choose between waiving their right to avoid
being publicly identified as having a disability and exercising their statutory
rights—including the rights to FMLA leave and reasonable accommodations . . .
that may depend on disclosure of their medical conditions.”
Note: Doe suggests that requesting accommodations under ADA triggers confidentiality
protections.
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Example 7: Supervisor requires employee to submit doctor’s note for each day of
work missed due to illness?
 Protected – employer inquiry, not voluntary employee disclosure
 Fisher v. Harvey, No. 1:05-cv-102, 2006 U.S. Dist. LEXIS 57964 (E.D. Tenn.
Aug. 14, 2006)
 Employee with hepatitis C missed work for chemo treatments
 Supervisor required employee to bring doctor’s note for each day of missed work
 Supervisor attached doctor’s notes to leave request forms and left the forms in
break room open to all employees
 Like Doe, employee disclosed in response to employer inquiry re: specific nature
of illness that prevented employee from working
Example 8: Employee requests schedule modification due to “medical condition,”
and supervisor then demands specific diagnosis?
 Protected – employer inquiry, not voluntary employee disclosure
 EEOC v. Ford Motor Credit Co., 531 F. Supp. 2d 930 (M.D. Tenn. 2008)
 Employee with HIV asked for schedule change to participate in clinical trial
 Requested change for “medical condition” and manager responded by asking for
specific diagnosis
 Manager referred employee to occupational nurse to discuss FMLA
 Manager later tells direct supervisor of diagnosis and word spreads
 Court: FMLA statute conditions the entitlement on disclosure
 Disclosure obviously involuntary: manager pressed employee
 “It is the nature of [employer’s] inquiry, and not the ultimate merit of [employee’s]
request for accommodation, that controls this issue.”
Example 9: Coworkers report employee’s increased stressful behavior and
employer refers to EAP. After EAP doctor tells employer that employee has an
“explosive temperament” and blames everyone else for issues, employee is
terminated.
 EAP doctor didn’t share confidential information, just “general job-related
observations” about employee
 Barger v. Bechtel, No. 07-0256, 2008 U.S. Dist. LEXIS 80008 (D. Idaho Sept.
25, 2008).
 Court found that disclosure fell within “need to know” exception – managers and
supervisors may be informed on necessary restrictions.
 Question: did EAP doctor really share information about “restrictions” on
employee’s work or duties, as the need-to-know exception in the statute says?
 Bad facts at play
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Example 10: Employee doesn’t show up for work and supervisor emails: “Give us a
call. We need to know what’s going on.” Employee responds by email that he’s been
in bed all day with a migraine headache. Supervisor allegedly discloses to
prospective employers that employee has migraines.
 Voluntary? Undecided
 EEOC v. Thrivent Financial for Lutherans, No. 10-C-853 (E.D. Wisc. filed Sept.
30, 2010) (motions for summary judgment pending as of April 2011)
 Employer argues disclosure was voluntary and cites Sherrer; similar to
supervisor asking “is everything okay?”
 EEOC argues that asking an employee whether he can show up for work is
clearly a job-related inquiry, and that employer initiated the inquiry
 EEOC confirms its position that any employee disclosures of medical
information, even if voluntary, are subject to ADA confidentiality protections
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Takeaways from cases
Cases show courts are all over the map, which leaves room for argument
Argue that disclosure was conditioned on ADA right to reasonable
accommodation
Same reasoning on disclosing to invoke FMLA rights applies to ADA
Because performing essential job functions is required, asking for
accommodations to perform those functions is not really voluntary
Issue is not whether employee is ultimately entitled to the requested
accommodation; it’s the invocation of the right that matters
Employees may want to avoid providing too much detail when requesting
accommodation
Wait for employer to require more detail, which should trigger confidentiality
protections (Ford Motor Credit)
If ADA does not provide a remedy, look to other federal laws and state law
Employee Assistance Programs (EAPs)
From EEOC Enforcement Guidance on Disability Inquiries
“May an Employee Assistance Program (EAP) counselor ask an employee seeking help
for personal problems about any physical or mental condition(s) s/he may have??
Yes. An EAP counselor may ask employees about their medical condition(s) if s/he: (1)
does not act for or on behalf of the employer; (2) is obligated to shield any information the
employee reveals from decision makers; and, (3) has no power to affect employment
decisions.”
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But see Barger v. Bechtel (above) (court suggests EAP counselors can
disclose “general observations” to employers)
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