I’ll go ahead and file this one under “duh.”
If an employer inquires about an employee’s medical condition, the Americans with Disabilities Act mandates that it be job-related or consistent with business necessity. Even then, an employer must treat any medical information obtained from a disability-related inquiry or medical examination, including any information that an employee voluntarily discloses, as a confidential medical record.
An employee who claims that their employer violated the ADA’s confidentiality provisions must prove three things:
- Their employer obtained their medical information through employment-related medical examinations and inquiries,
- The employer did not treat that information as confidential, and
- The employee suffered a tangible injury from the disclosure.
In a federal court decision I read last night, the plaintiff was not keen on getting the jab as part of her employer’s vaccine mandate during the pandemic. Between March 2020 and June 2021, the plaintiff told several co-workers she was not vaccinated against COVID-19 and did not wish to receive the vaccine.
Meanwhile, the employer would not allow employees back into the office until fully vaccinated. So, the plaintiff sought an exemption. In doing so, she disclosed that she was not vaccinated and noted, “I strongly believe that the decision whether or not to get vaccinated is a personal choice. And I do not have confidence that these vaccinations are safe.” Eventually, she just resigned.
After her resignation, the plaintiff sued her employer, seeking unpaid overtime. The defendant denied the claims, and in a statement to a newspaper reporter, it noted that the employee left the company “because she did not wish to receive the [COVID-19] shot.” So, the plaintiff doubled down, alleging a violation of the ADA’s confidentiality requirements.
Except, here’s the thing. The defendant did not violate the ADA’s confidentiality requirements.
“Once information is public, it remains public,” noted the judge. The ADA “doesn’t protect information that an employee shares with co-workers, including superiors, outside of an employer-conducted inquiry…Once she decides to make the information public, she cannot turn around and sue her employer for disclosing that information…That public information made its way through the halls at [work] until [the company] disclosed it to the press. Because [that] statement did not disclose private information, it didn’t violate the ADA.
And before you ask, it didn’t violate HIPAA either because most employers are not subject to HIPAA requirements.
As a best practice, employers should keep employee medical information confidential in a separate medical file. Axiomatically, however, if employees want to publicize their medical status to others, it is no longer confidential.