Voluntary Disclosure of Medical Information does not Create Employer Liability Under the ADA

A truck driver voluntarily informed his company’s human resources manager that he was HIV-positive. Several months later, the driver decided to become a driver-trainer for the company. The company’s human resources manager expressed concerns regarding the driver’s ability to work as a trainer because of his HIV-positive status. The company and the driver discussed the matter and ultimately decided that the driver’s HIV status would be disclosed to those he trained via an acknowledgement form informing trainees that the driver suffered from HIV. Ultimately, the relationship between the driver and the company deteriorated significantly, and the driver’s contract was terminated. The U.S. Employment Opportunity Commission (EEOC) sued the company on the driver’s behalf, raising a number of claims. Included among these was a violation of Section 102(d) of the Americans with Disabilities Act (ADA), which governs medical examinations and inquiries. Ultimately, the U.S. Court of Appeals for the Tenth Circuit held that Section 102(d) only prohibits the disclosure of confidential information obtained through an authorized medical examination. It does not, the court held, protect information that is voluntarily disclosed by an employee outside of an authorized employment-related medical exam or inquiry. This opinion recognizes an important limitation on Section 102(d), which could otherwise rapidly devolve into a strict-liability provision that creates liability for any disclosure. Such a result would negatively impact the ability of employers and employees to develop creative solutions to difficult situations, like the one presented here. Nevertheless, employers must tread with extreme caution whenever disclosing confidential employee information, as doing so could lead to litigation not only under the ADA, but under state tort laws as well.

Voluntary Disclosure of Medical Information does not Create Employer Liability Under the ADA

A truck driver voluntarily informed his company's human resources manager that he was HIV-positive. Several months later, the driver decided to become a driver-trainer for the company. The company's HR manager expressed some concerns regarding the driver's ability to work as a trainer because of his HIV-positive status. The company and the driver discussed the matter, and ultimately decided that the driver's HIV status would be disclosed to those he trained via an acknowledgement form informing trainees that the driver suffered from HIV. Ultimately, the relationship between the driver and the company deteriorated significantly, and the driver's contract was terminated. The EEOC filed suit against the company on the driver's behalf, raising a number of claims. Included among these was a violation of Section 102(d) of the Americans with Disabilities Act ("ADA"), which governs medical examinations and inquiries. Ultimately, the Tenth Circuit held that Section 102(d) only prohibits the disclosure of confidential information obtained through an authorized medical examination. It does not, the court held, protect information that is voluntarily disclosed by an employee outside of an authorized employment-related medical exam or inquiry. This opinion recognizes an important limitation on Section 102(d), which could otherwise rapidly devolve into a strict-liability provision that creates liability for any disclosure. Such a result would negatively impact the ability of employers and employees to develop creative solutions to difficult situations, like the one presented here. Nevertheless, employers must tread with extreme caution whenever disclosing confidential employee information, as doing so could lead to litigation not only under the ADA, but under state tort laws as well.

EEOC v. C.R. England, Inc., Nos. 09-4207, 09-4217 (10th Cir., May 3, 2011)

EEOC Announces Final Bipartisan Regulations for the ADA Amendments Act

Regulations Implement Congressional Intent to Simplify Definition of Disability

WASHINGTON — The U.S. Equal Employment Opportunity Commission’s (EEOC) final regulations to implement the ADA Amendments Act (ADAAA) are now available on the Federal Register website. Like the law they implement, the regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA)... (read more)

City may Require Physician’s note from Employees upon Return from Leave or Restricted Duty

A city directive required employees from the division of police returning to regular duty following sick leave, injury leave or restricted duty, to submit a copy of their physician’s note, stating the “nature of the illness” and whether the employee was capable of returning to regular duty, “to [his or her] immediate supervisor.” Upset by the mandatory disclosure and funneling of confidential medical information through immediate supervisors, the division of police employees brought a class action lawsuit against the city, alleging that the directive violated the American with Disabilities Act, the Rehabilitation Act, and the privacy provisions of the First, Fifth, and Fourteenth Amendments. The U.S. Court of Appeals for the Sixth Circuit held that the employer’s request for a returning employee to provide information about his or her general diagnosis was not necessarily a question about potential disability, and fell far short of the requisite proof of the employer engaging in discrimination solely on the basis of disability. The court stated that based on the ADA’s definition of “disability” the city’s directive was not a prohibited inquiry as to whether an employee is an individual with a disability because there was no evidence that this inquiry was intended to reveal or necessitated revealing a disability. Therefore, the directive did not trigger the ADA’s protections. The court also rejected the employees’ privacy rights claims, concluding that the directive did not raise an informational privacy concern of a constitutional dimension. This case demonstrates that an employer may institute a carefully crafted policy requiring a returning employee to provide information about his or her general diagnosis and ability to return to work, so long as the policy does not require the employee to reveal (or necessitate an employee revealing) that he or she is an individual with a disability as defined by the ADA.

Employee’s Sleep Apnea not a Qualifying Disability Under the ADA

A registered nurse suffered from sleep apnea and was repeatedly late for work as a result. The employee allegedly informed his employer that he was having difficulty sleeping and disclosed his suspicions regarding the possibility of having sleep apnea. The employee was subsequently given a verbal warning for excessive tardiness. The employee continued to arrive late, resulting in a suspension without pay and a threat of termination. These measures remedied the employee’s tardiness issue. However, months later, the employee had a verbal altercation with another co-worker and mentioned fatigue due to sleep apnea as one of several reasons. After being asked if he needed some time off to deal with his sleep apnea issues, the employee informed the employer that his “heart and soul were not in this job anymore.” The following day he was terminated. Subsequently, the employee received medical confirmation that he suffered from severe obstructive sleep apnea syndrome. He sued the employer under the Americans with Disabilities Act of 1990 (ADA) and the Pennsylvania Human Relations Act. The employer argued that the employee was not disabled under the ADA. The U.S. Court of Appeals for the Third Circuit agreed, and held that the employee was not a “qualified individual with a disability.” The court ruled that the employee’s sleep apnea did not “substantially limit” a major life activity because there was little evidence that the employee’s sleep was severely disrupted and the employee conceded that his sleep apnea did not impair his ability to do his job. Employers may take adverse action against employees who are performing inadequately, but must ensure that adverse action is never based on an employee’s disability. Additionally, with the recent issuance of the final regulations implementing the ADA Amendments Act (ADAAA), employers should be mindful that many conditions not previously considered “disabilities” under the ADA may now qualify and in most situations, employers should proceed cautiously by engaging in a good faith interactive process with their employees.

EEOC Issues Final Regulations Implementing the ADA Amendment Act

On March 24, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) released long-awaited final regulations implementing the ADA Amendments Act (ADAAA). The ADAAA became effective on January 1, 2009. The final regulations implement the legislative intent of the ADAAA to make it easier for individuals with disabilities to obtain protection under the Americans with Disabilities Act (ADA). The ADAAA emphasizes that the primary focus in ADA cases should be on whether employers complied with their obligations under the statute and whether discrimination occurred, not whether individuals are disabled under the law. The regulations maintain this focus by retaining the broad definition of “disability.” More ›