In a case that places some limits on the confidentiality requirements under the Americans with Disabilities Act (the ADA), the Seventh Circuit held that an employer did not violate the ADA when it disclosed a former employee’s medical condition to prospective employers, after the employee had voluntarily disclosed the condition to his former employer. E.E.O.C. v. Thrivent Fin. for Lutherans, No. 11-2848, 2012 WL 5846208 (7th Cir. Nov. 20, 2012).

Background

Omni Resources, Inc. (Omni), a technology consulting company, hired Gary Messier (Messier) as a temporary SAS programmer for Thrivent Financial for Lutherans (Thrivent). On November 1, 2006, about four months into his employment, Messier failed to report to work and failed to notify Omni or Thrivent of his absence. After an e-mail inquiry from Omni regarding his whereabouts, Messier sent his supervisor at Thrivent and the account manager at Omni an e-mail stating that he had been in bed all day with a severe migraine headache. His e-mail explained that he occasionally suffered from debilitating migraines due to a 1984 car accident. He expressed his desire to continue his employment with Omni and Thrivent through the remainder of his contract. The account manager from Omni responded that he hoped Messier felt better and that he should let Omni know if there was anything the company could do.

Despite Messier’s assertion that he intended to continue his employment, he quit his job with Thrivent on December 4, 2006. Messier soon began looking for a new position, and three prospective employers called Messier’s former supervisor at Thrivent for a reference. After all three employers declined to hire Messier, he became suspicious and retained the services of Reference Matters, Inc. (RMI), an online reference checking agency, to ascertain what information Thrivent was providing to his prospective employers. On January 10, 2008, an RMI agent called Messier’s former supervisor at Thrivent pretending to be a prospective employer interested in hiring Messier. During the phone conversation with RMI, the supervisor stated that Messier “has medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the [failure to let us] know” when he planned to be absent that Omni expressed concern over. RMI thereafter reported the telephone conversation to Messier.

The EEOC Lawsuit

Based on that telephone conversation, Messier filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging disability discrimination under [the ADA]. The EEOC found reasonable cause to believe that Thrivent had violated the ADA and, on March 15, 2010, issued to Thrivent a “Letter of Discrimination.” When the letter failed to induce a settlement between the parties, the EEOC filed suit in the U.S. District Court for the Eastern District of Wisconsin. See EEOC v. Thrivent Fin. for Lutherans, No. 2:10-cv-853 (E.D. Wis. 2010).

In its complaint, the EEOC alleged that Thrivent violated the ADA’s confidentiality provision, 42 U.S.C. § 12112(d), by “revealing to prospective employers Messier’s confidential medical information obtained from a medical inquiry.” Section 12112(d), titled “Medical examinations and inquiries,” provides in relevant part:

(1) In general
The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.
...

(3) Employment entrance examination
...

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that —
(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
(iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and

(C) the results of such examination are used only in accordance with this subchapter.

(4) Examination and inquiry
...

(B) Acceptable examinations and inquiries

A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

(C) Requirement

Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).

The district court determined that before it could decide whether Thrivent’s statements violated 42 U.S.C. § 12112(d) because such information was to be considered confidential, it needed to determine whether the confidentiality provision even applied — i.e., “whether Thrivent received Messier’s medical information through a medical inquiry” under § 12112(d)(1). To answer this question, the district court encouraged both sides to file motions for summary judgment.

In its motion, the EEOC asked the court to find that Messier’s disclosure of his migraine condition was “done in the context of a medical inquiry of Messier by Thrivent.” The district court held that Omni’s e-mail inquiry on November 1, 2006, which asked why Messier did not report to work was not a “medical inquiry.” The court reasoned that “(g)iven 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.” In so holding, the district court relied on the fact that Omni’s e-mail was facially neutral — it did not ask for any medical information and Messier could have simply replied that he was taking a sick/personal day. Instead, it was Messier who volunteered the information without any specific inquiry from Omni or Thrivent into the existence of a specific medical condition that might have caused Messier to miss work. As such, the court granted summary judgment in Thrivent’s favor.

The Seventh Circuit Decision

On appeal, the EEOC abandoned the argument that Omni’s e-mail specifically constituted a medical inquiry and instead focused on an issue raised but not addressed in the district court’s decision: that the ADA’s confidentiality provisions protect all employee medical information revealed through any “job-related” inquiry. The EEOC took the position that, because Omni’s e-mail was a job-related inquiry, to wit, a request for information concerning an employee’s otherwise unexplained absence, any response to that e-mail providing medical information was covered by the ADA’s confidentiality requirement. Thus, the EEOC argued that the term “inquires” in 42 U.S.C. § 12112(d)(1) must be read liberally to encompass all employer-initiated, job-related inquiries, even when the employer had no advance knowledge that the employee may have a medical condition covered by the ADA.

The Seventh Circuit disagreed. First, it reasoned that the plain language of the ADA does not support the contention that job-related inquires cover all employer-initiated inquires. Instead, because the statute specifically states that “(a) covered entity may make inquiries into the ability of an employee to perform job-related functions,” the court concluded that the statute simply cannot have been intended to cover all job-related inquiries that result in the divulgence of medical information.

In so holding, the Seventh Circuit distinguished other cases relied upon by the EEOC in which courts had read the term “inquiries” more broadly, holding that the employers in those cases had “initiated the interactions with some preexisting knowledge that the employee was ill or physically incapacitated.” Importantly, the court concluded that all of the case law supports the conclusion that an employer must “already know that an employee is ill or physically incapacitated before initiating the interaction in order for the interaction to be considered an inquiry under 42 U.S.C. § 12112(d)(4)(B).”

Turning to the facts of the case before it,the court confirmed that neither Thrivent nor Omni had any such preexisting knowledge. The record contained no evidence suggesting that Thrivent or Omni should have inferred that Messier’s absence on November 1, 2006 was due to a medical condition. As the court explained: “(f)or all Thrivent and Omni knew, Messier’s absence was just as likely due to a non-medical condition as it was due to a medical condition.” For this reason, the court concluded, Omni’s e-mail could not be considered a medical inquiry, and so any medical information divulged to Omni or Thrivent as a result of that inquiry was not covered by the ADA.

Conclusion

The Thrivent case suggests that, at least in the eyes of the Seventh Circuit, employers without preexisting knowledge are not bound by the ADA’s confidentiality obligations with respect to medical information that employees voluntarily disclose. Still, because the line between voluntary and requested disclosure can be blurry at times, employers should be cautious when soliciting and/or receiving medical information from employees that might be considered covered by the ADA or a similar state or local statute.

The Arent Fox Labor & Employment Law Group regularly advises employers on the ADA and its confidentiality obligations. If you have any questions about this case or ADA matters in general, please feel free to contact the authors or any other members of the Group.