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Medical information not confidential if disclosed in response to general inquiry

Still, employers should exercise caution when responding to reference requests

In Equal Employment Opportunity Commission v. Thrivent Financial for Lutherans, the 7th Circuit found that the Americans with Disabilities Act’s (ADA) confidentiality requirement does not apply to medical information an employer learns about through means other than a medical exam or inquiry.

Gary Messier had been working for Thrivent as a temporary programmer, at the behest of technology consulting agency Omni Resources Inc., for almost four months without incident when he failed to show up for work one day. John Schreiner, Messier’s supervisor at Thrivent, contacted Omni Account Manager Thomas Brey, looking for Messier. Brey sent Messier the following email: “Gary, Give us a call, and give John a call. We need to know what is going on. John called here looking for you.”

At 4:53 p.m., Messier responded with an email, which read, in part: “Tom/John, I’ve been in bed all day with a severe migraine. Have not had one this severe in over six years. … Sorry for the very late reply but when I get migraines of this severity I am bed ridden until I can get them to a level so I can function.”

After Messier quit his job with Thrivent just one month later, reportedly not on good terms, he had trouble finding work. He hired a reference-checking agency, Reference Matters Inc., which called Schreiner, pretending to be a prospective employer. Schreiner said that Messier “has medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the letting us know.”

Messier filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging disability discrimination under the ADA. When a “Letter of Discrimination” from the EEOC to Thrivent failed to cause the parties to settle, the EEOC filed an action on behalf of Messier, alleging that Thrivent violated the medical record confidentiality requirement of the ADA when it told Messier’s prospective employer about his migraine condition.

Both parties filed cross-motions for summary judgment in district court. The district court granted summary judgment to Thrivent, and on Nov. 20, 2012, the 7th Circuit affirmed this ruling.

Analyzing Email

In district court, the EEOC argued that Brey’s email to Messier constituted a medical inquiry. The district court found that it did not, because “given the vast number of reasons an employee could miss work without informing his employer, it seems unreasonable to assume that an employer checking in on his absent employee has the intent to request or acquire medical information.”

On appeal, the EEOC dropped that claim, instead alleging that the ADA’s confidentiality requirement applies to all job-related inquiries. The title of the section in question is “medical examinations and inquiries.” Doing some high-level analysis of the word “and,” the 7th Circuit found that the adjective “medical” applied to the word “inquiries” as well as “examinations,” and rejected the EEOC’s argument.

“Had the EEOC won a case like this, it would’ve effectively meant that medical information, no matter how you get it, has to be kept confidential,” says Peter Petesch, a shareholder at Littler Mendelson. “It would’ve made employers more hyper-cautious.”

Franczek Radelet Partner Michael Warner adds that there are many gray areas the EEOC could’ve taken advantage of, had it succeeded in this argument. “If you have a friendly workplace, people are always talking about their health and medical conditions,” Warner says. “That’s always been a concern, since the ADA was passed. Where do you draw the line between people having friendly conversations about their personal lives that may include medical information and a true medical exam or inquiry? So this decision is frankly very welcome because it does provide a safe harbor.”

The 7th Circuit also noted that in the cases the EEOC used to back up its assertion that the ADA confidentiality requirement applies to all inquiries, the employer had prior knowledge of the employee’s medical condition before a general inquiry turned up more medical information. In other words, only if the employer learns the medical information for the first time through a general inquiry is it not protected by the ADA.

“Once they’ve gained the information through a medical inquiry, if it’s volunteered again, [that] doesn’t make it un-confidential,” Warner says.

 

Reference Requests

Although Thrivent was ultimately vindicated in this case, had Schreiner never revealed Messier’s medical information to third parties seeking a reference, the company likely would not have had to face this lawsuit.

Warner recommends that companies only provide neutral references for former employees—just confirm their positions, dates of employment and compensation. “There’s really very little benefit for the former employer who’s being contacted to disclose more information,” he says.

Cozen O’Connor Member Michael Schmidt suggests that companies put a policy in place to centralize all reference requests. “If somebody is calling or writing to request a reference for a former employee, that should always be directed to a centralized department or individual so they can respond appropriately,” he says. “At least it will be consistent … as opposed to various supervisors or managers giving inconsistent and, at times, inappropriate information about former employees.”

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