|Slide 1: Welcome to the 2012 ADA Legal Webinar Series|
The content and materials of this training are property of the Great Lakes ADA Center and cannot be distributed without permission. This training is developed under NIDRR grant #H133A110029. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at email@example.com or toll free 877-232-1990 (V/TTY).
Slide 2: Webinar Features
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Questions - type and submit questions in the Chat Area Text box or press control-M and enter text in the Chat Area.
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Slide 3: Confidentiality under the ADA and Other Laws
Presented by: Barry Taylor, Legal Advocacy Director, Equip for Equality
Alan Goldstein, Senior Attorney, Equip for Equality
Valuable assistance provided by Joseph Schwartz
May 16, 2012
Slide 4: Continuing Legal Education Credit for Illinois Attorneys
This session is eligible for 1.5 hours of continuing legal education credit for Illinois attorneys.
Illinois attorneys interested in obtaining continuing legal education credit should contact Barry Taylor at: firstname.lastname@example.org
This slide will be repeated at the end.
Picture: Continuing Legal Education - Picture of Books and an apple.
Slide 5: Confidentiality Under the ADA and Other Laws
Query: How many participants today are -
Advocates for people with disabilities
Represent employers or other covered entities
Innocent, unbiased bystanders
Slide 6: Confidentiality Under the ADA and Other Laws
Confidentiality Under ADA Title I
Confidentiality Under ADA Titles II & III, Rehabilitation Act, Civil Rights Act, and Fourteenth Amendment
Confidentiality Under Other Laws
For more information, pleas see DBTAC: Great Lakes ADA Center Brief on Medical Inquiries available at: www.adagreatlakes.org/Publications
Picture: Photograph of the Earth
Slide 7: Confidentiality
Photograph: Children whispering
Slide 8: Confidentiality ADA Statute and Regulations
ADA Statute: Information obtained regarding the medical condition or history of the applicant must be collected and maintained on “separate forms and in separate medical files and treated as a confidential medical record, except that:
supervisors and managers may be informed regarding necessary restrictions on the work or
duties… and necessary accommodations;
(ii) first aid and safety personnel.. when appropriate; and
(iii) government officials investigating compliance…”
Regulations: Confidentiality applies to: entrance exams; medical exams; and info for “voluntary” health programs. 29 C.F.R. § 1630.14
Slide 9: Confidentiality: EEOC Guidance
Confidentiality applies to all medical information, including information related to reasonable accommodation requests.
Employers must obtain a release to speak to an employee’s doctor.
The release should be clear as to what information will be requested.
Medical information may be given to “appropriate decision-makers involved in the hiring process” on a need-to-know basis.
Medical information can be shared with third parties as part of the reasonable accommodation process but must be kept confidential.
Confidentiality must be maintained even after employment or the application process ends.
EEOC Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, found at: www.eeoc.gov/policy/docs/accommodation.html; EEOC Enforcement Guidance: Pre-employment Disability- Related Questions and Medical Examinations, found at: www.eeoc.gov/policy/docs/preemp.html
Slide 10: Confidentiality: Who is Protected?
Generally, an applicant or employee does not have to meet the ADA’s definition of disability to claim the confidentiality protections. See, e.g., Giaccio v. City of New York, 502 F.Supp.2d 380 (S.D.N.Y. 2007); Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999).
Unlike other ADA provisions, “Examination and Inquiry” provision speaks of “applicants” and “employees,” not “qualified individuals with disabilities.” 42 U.S.C. § 12112(d)(4)
Most courts follow this principle, but some do require proof of disability.
Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221 (10th Cir. 1997)
“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.”
Slide 11: Confidentiality: Tangible Injuries
However, employees do have to show a tangible injury
Does not have to be economic (e.g., termination or inability to find other jobs).
Can be emotional (e.g., harassment or emotional distress).
EEOC v. Ford Motor Credit Co.
531 F. Supp. 2d 930, 941 (M.D. Tenn. 2008)
“Shame, embarrassment, and depression” are tangible injuries.
Slide 12: What Information is Protected?
Employer-Mandated vs. Voluntary Disclosure
Issue: Was disclosure voluntary or in response to employer inquiry?
Employer Inquiries Include:
Requirements for leave under the FMLA or ADA.
Medical inquiries and examinations of applicants or employees.
Fitness for duty exams assessing ability to perform essential job functions.
Other mandatory requests for information.
Medical support for reasonable accommodation requests (usually)
Re-disclosure permitted on a “need to know basis.”
Voluntary Disclosures Include:
Almost everything else.
E.g., casual discussions and disclosures not in response to formalized, mandatory requests for information (“How are you feeling?”).
Slide 13: What Information is Protected from Disclosure? One Court’s Summary
Sherrer v. Hamilton Cnty. Bd. of Ed.,
747 F. Supp. 924 (S.D. Ohio Sept. 24, 2010)
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.”
Slide 14: What Information is Protected from Disclosure? - Need for FMLA Leave
EEOC v. Ford Motor Credit Co., 2008 WL 152780 (M.D. Tenn. Jan. 14, 2008)
Employee living with HIV disclosed HIV status to his supervisor as he needed intermittent FMLA leave or a modified schedule as an ADA reasonable accommodation to participate in a clinical trial.
Supervisor re-disclosed condition to his HIV to his co-workers causing him shame, humiliation, and depression.
Court: Disclosure was not voluntary -pre-requisite to receive leave.
Doe v. U.S.P.S., 317 F.3d 339 (D.C.Cir. 2003)
HIV status disclosed in request for FMLA leave is confidential.
Therefore, co-workers should not have learned of the condition.
Note: Info sought in FMLA form constituted a medical inquiry under ADA.
Fisher v. Harvey, No. 1:05-cv-102, 2006 WL 2370207 (E.D. Tenn. Aug. 14, 2006)
Violation when supervisor required a dr.’s note for missed work and left the forms in the break room.
Picture: Square with Red Ribbon. Wording says, “AIDS/HIV Awareness: Support, Advocate, Cure”
Slide 15: What Information is Protected from Disclosure? – Reasonable Accommodation Info
Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215 (July 6, 2011)
Plaintiff disclosed ADHD when requesting a reasonable accommodation.
Plaintiff did not disclose condition on the post-offer medical questionnaire.
In-house physician mentioned the omission to management and plaintiff’s employment was terminated.
Court: ADA confidentiality applies to disclosure to outsiders and intra-company disclosures.
Possible ADA violation by physician as disclosure was not necessary for company managers to accommodate plaintiff.
Note: Decision holds that the ADA protects even false medical information: “There is no prevarication exception to the ADA’s confidentiality...”
See also, Medlin v. Rome Strip Steel Co., Inc., 294 F.Supp.2d 279 (N.D.N.Y. December 10, 2003) (results from Functional Capacity Evaluation (FCE) are confidential)
Slide 16: Maintenance of Reasonable Accommodation Info
Cripe v. Mineta,
2006 WL 1805728 (D.D.C. June 29, 2006)
Facts: Attorney of an employee living with HIV sent a letter to the employer regarding work accommodations (information was demanded by employer).
Employer failed to keep the letter confidential (the letter was sitting on a desk without an envelope)
As a result other employees learned of the plaintiff’s HIV status.
Court: Rejected employer’s argument that the information did not have to be protected since it was not marked as confidential.
Note: Once a company gets medical information, it must be properly maintained.
Picture from the game "Operation"
Slide 17: What Information is Protected from Disclosure? – Voluntary Disclosure
Sherrer v. Hamilton Cnty. Bd. of Ed., 747 F. Supp. 924 (S.D. Ohio Sept. 24, 2010)
Employee disclosed breast biopsy when supervisor noted her filling out an unrelated medical form and asked, “Is everything okay?
Court: Voluntary - FMLA or ADA rights not predicated on disclosure.
See also, EEOC v. Thrivent Financial for Lutheran, 795 F.Supp.2d 840 (June 15, 2011) (Employee informed supervisor of migraines after missing work and being told, “Give us a call. We need to know what’s going on.” Deemed voluntary and not protected.)
Wiggins v. DaVita Tidewater, LLC, 451 F. Supp. 2d 789 (E.D. Va. 2006)
Medical technician experienced a “panic attack” at work and was subsequently diagnosed with bipolar disorder.
Gave her doctor permission to inform her supervisor.
When employee returned to work, coworkers knew of her diagnosis.
Court: Confidentiality is not protected - voluntary disclosure.
Slide 18: What Information is Protected from Disclosure? Voluntary Disclosure
EEOC v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011)
Former driver/trainer voluntarily disclosed HIV status to HR.
Employer required that Plaintiff inform potential trainees of his condition.
In response, Plaintiff suggested drafting a form for trainees.
Eventually terminated for performance issues.
Court: No ADA violation as HIV status was voluntarily disclosed.
Requiring info to be disclosed to trainees was not an adverse employment action.
No showing of harm to Plaintiff.
Pointed out that a mandatory “co-worker consent policy” may be unlawful in other circumstances.
But see, Mahran v. Benderson Development Company, 2011 WL 2038574 (May 24, 2011) (confidentiality claim allowed to proceed when plaintiff did not claim there was an adverse employment action – Court also said that EEOC exhaustion was not required).
Slide 19: What Information is Protected from Disclosure? – Voluntary Disclosure
Kingston v. Ford Meter Box Co., 2009 WL 981333 (N.D. Ind. Apr. 10, 2009).
Supervisor tells employee that he must spend more time on plant floor.
Employee informs supervisor that he has COPD.
Prior to a meeting with supervisor and company nurse to discuss accommodations, the employer shares condition with coworkers.
Court: No confidentiality as it was a voluntary disclosure, was not in response to inquiry about ability to perform job functions.
Timing was key – disclosure was before accommodations meeting and was not required.
“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…”
Note: The Court could have decided differently as the initial disclosure was in response to a question regarding performance of job duties.
Slide 20: What Information is Protected from Disclosure? – Need to Know Basis
Note: There are two aspects – Initial disclosure & subsequent re-disclosure.
Lee v. City of Columbus, 2011 WL 611904 (6th Cir. Feb. 23, 2011)
Supervisor has a need to know why an employee was on sick leave.
O’Neal v. City of New Albany, 293 F.3d 998 (7th Cir. 2002)
OK for doctor to disclose exam results to a local pension board as it had to certify the plaintiff’s examination for the hiring process.
Tucker v. CAN Holdings, Inc., 2008 WL 5412829 (W.D. Ky. Dec. 30, 2008)
At a work-related exam, employee disclosed a childhood medical condition requiring a corrective device.
When she injured her back, the employer sent an e-mail to all employees worldwide describing the employee’s medical condition.
Court: Employee medical information must be treated as confidential and only disclosed for special work-related reasons.