Wednesday, November 21, 2012

Mollica on the Seventh Circuit on Medical Privacy and the ADA

Over at his very helpful blog, Paul Mollica has this post on a case the Seventh Circuit decided yesterday on an employer's ADA obligations to keep employees' medical information confidential.  An excerpt:
While the Americans with Disabilities Act protects medical information about employees disclosed to an employer as a result of "medical examinations and inquiries," 42 U.S.C. § 12112(d), such protection is not infinitely elastic. The Seventh Circuit, affirming summary judgment in this ADA case, holds that the employer must "already kn[o]w something [i]s wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry." Fortunately for disabled employees, such circumstances are usually within their control if they are willing to come straight with their bosses about their work-related needs at the beginning of the relationship. 
EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (7th Cir. Nov. 20, 2012): The employee in this case (named Gary Messier) periodically suffered disabling migraines, a fact that he - fatefully, for this case - failed to disclose to his employer at the outset of the relationship. 
* * * 
In this case, because Messier apparently never informed the employer of his migraines (the record indicates that the employer had not suffered such a debilitating headache in six years), the panel held that the employee's volunteering of the medical information - in response to an inquiry about his absence from work - did not fall into the category of protected "medical examinations and inquiries." 
An employee with a disability may be best served then, after accepting employment, with informing the employer up-front about a disability that might cause a sudden absence from work. A dialog at this stage triggers the employer's ADA duty to offer a reasonable accommodation (which may include intermittent leave) and, importantly as this case shows, to maintain the confidentiality of the employee's information.

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