“Need to Know Basis” – A Good Rule of Thumb Under the ADA
Under the Americans with Disabilities Act (“ADA”), employers have certain obligations regarding the non-disclosure of employee medical information and disabilities. For instance, under the ADA, information an employer obtains regarding an employee’s medical condition must be collected on separate forms, kept in medical files, and treated as a confidential medical record. In fact, it should be kept entirely separate from the rest of the personnel file.
This ADA mandate also means an employer cannot disclose an employee’s medical condition to the masses. An employer in Connecticut unfortunately learned this lesson the hard way. Day and Zimmermann NPS, a staffing services provider, hired an electrician to work during the shutdown of a power plant in Waterford, Connecticut. The electrician filed an EEOC Charge asserting an ADA claim when he was terminated following his disclosure that he could not work around radiation due to a lung condition. He maintained the plant had numerous areas that had no radiation and thus his employment did not have to be terminated.
Day and Zimmermann explained the details of the electrician’s Charge and his restrictions to work in a letter to 146 members of his union. The Company sent the letter as part of the EEOC’s investigation of the underlying Charge when the EEOC sought information regarding additional workers’ contact information. The gist of the letter was giving the workers a “heads up” about the information the EEOC requested but it also identified the complainant by name and described the facts in his EEOC Charge.
The EEOC brought suit in the United States District Court for the District of Connecticut asserting a claim for retaliation against the worker who filed the EEOC Charge and an interference claim on the grounds the disclosure of the Charge interfered with the rights of workers to communicate with the EEOC and file charges. (While the EEOC did not focus on the Company’s disclosure of the employee’s medical information in its lawsuit, this is an additional claim the EEOC could have explored.)
The case was resolved pursuant to a three-year consent decree which enjoined Day & Zimmermann from future retaliation or interference with ADA-protected rights and prohibited the company from publicizing the identity of individuals who file charges of disability discrimination in the future. The decree further provides for revision of Day and Zimmermann’s company policies, an extended statute of limitations for certain individuals to file ADA claims with the EEOC, and $45,000 in compensatory damages to the employee who filed the original discrimination charge. This case makes clear the EEOC, and other administrative agencies, take very seriously anything that might be construed as an attempt by a company to interfere in an employee’s right to file a charge of discrimination.
Additionally, for employers, this case is a good reminder that disclosure of an employee’s disability or medical condition (and any other non-public information) can have serious consequences. In the instant case, none of the workers who received the letter needed to know the complainant’s name or the specifics of his condition. Only a limited group of people need any medical or confidential information in order to evaluate what reasonable accommodation can be made for an employee.
Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.454.0560.