Tips to Protect Your Privacy

Family, Medical, and Other Leave Discrimination
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Keeping your medical records private in the workplace is difficult, and it’s even more challenging because the right thing to do is often the opposite of what your instincts might tell you to do: namely, to share your information freely with your supervisor. Here are three things you can do to help protect your information.

1. Don’t tell your boss about your medical condition unless she asks you to.

Even then, be careful. Most people like to do their jobs well and don’t like to make a supervisor unhappy. For that reason, it is not uncommon to see an employee volunteer confidential medical information in response to a general question.

Let’s suppose that you have to be out of work for a terrible migraine. Your supervisor emails you and asks, “Hey, just checking in. What’s going on?” You then send a lengthy email to your boss telling her about this migraine, your course of treatment, and the medication you are on. Assume that your employer has one hundred employees. Is this information covered?

According to a federal appeals court, no. In EEOC v. Thrivent Financial for Lutherans, the court held that this information was not covered by the ADA because the question from the supervisor did not require the employee to share medical information. Thus, the information volunteered by the employee was not confidential.

Here is a brief summary of the facts in Thrivent. The employee lost his job for excessive absences. The employee later applied for other jobs. When prospective employers called his former boss for a reference, he described the reasons the employee was fired, which included sharing that he suffered from debilitating migraine headaches. The employee sued, claiming a violation of ADA confidentiality. The court dismissed his case for the reasons noted above.

What should you do if you get this call?

You should do one thing before you even get this call. If your employer has a policy that requires you to call in due to illness, follow it. In some instances, courts have dismissed lawsuits by employees who were protected by law but failed to follow the company’s policy on sick leave.

As for this specific instance, don’t answer what isn’t asked. Here, your boss has just asked a general question: “What’s going on?” If you are out for a medical reason, say something vague. For instance, “Sorry, boss. I’m under the weather. I should be back next week. I called and left a message for HR this morning.” If your supervisor presses you, you have little protection if the company has fewer than fifteen employees. You have to tell her something. But avoid sharing specific information. Instead, offer to bring in a doctor’s note when you return or to fax it that day if you can. Can your employer fire you for refusing to answer questions that implicate your medical information? Unless you are protected under some state law, if your employer has fewer than fifteen employees, the answer is probably, and sadly, yes.

If your employer has more than fifteen employees—and is thus covered by the ADA—tell your supervisor that you have a medical condition and will be happy to talk further to HR. Chances are, your supervisor wants to know as little as possible about your medical condition and will welcome a chance to have HR step in. If your supervisor is dissatisfied with that response and presses you for information, confirm that she is asking for your medical information. That way, your answer is protected by the ADA.

Here’s what you need to say to protect your rights under the ADA.

BOSS. What’s going on? Why are you out?
YOU. Sorry, I left a message on the HR hotline. I’m a bit under the weather today. I will be back in tomorrow.
BOSS. What do you mean “under the weather?”
YOU. I’m just sick; it’s personal. Look, if you need to know more, I’m happy to give more detail. But this involves confidential medical stuff. If you want, I can call HR again as soon as we hang up.
BOSS. No, look, I’ve got to know what’s going on. Do I need to cover one shift? Two? More?
YOU. Sure, I get it. So, you’re asking me for my medical information?
BOSS. Yes.
YOU. Okay. This is confidential, right?
BOSS. Ah, sure. Yeah. Need to know basis only.
YOU. I have severe migraines that make it difficult for me to function. I woke up with one this morning and went to see my doctor. I am on medication for them. They usually pass in a day or two. I called this morning and left a message on HR’s voice mail just like the policy manual says.

By clarifying that your boss is asking for confidential medical information, you make sure that your discussion is covered by the ADA.

As soon as that conversation is over, hang up and call HR. Tell your HR representative that you are seeking protection under the ADA. You actually do not need to use the initialism ADA. HR should know.

2. Tell HR.

Due to amendments to the ADA, many more conditions now qualify as a disability, even if they are sporadic: acute instances of asthma, for instance. So, even if you don’t consider yourself or your family member “disabled,” you may very well qualify for protection under the ADA. But you can’t get that protection if your employer does not know that you have a medical condition that might qualify as a disability.

So tell HR. Tell HR even if you don’t need time off or a change in your work conditions. This provides you the two protections offered under the ADA:

1. The right not to be discriminated against simply because you have a disability, and
2. The right to receive reasonable accommodations if you need them to perform your job.

An accommodation might involve a move to an office in a quiet location for someone with an anxiety disorder or time off to get medical attention for occasional migraines, for instance. But you can’t get any of these protections—or sue to vindicate your rights—if you cannot demonstrate that your company was aware of the disability.

When can the company ask you for your medical information?

The ADA allows for three instances when an employer can make medical inquiries or request that an employee receive a medical exam:

1. When an employer has objective evidence to question whether an employee can perform essential job functions;

2. When necessary to evaluate an employee’s request for an accommodation; or

3. When necessary to determine whether an employee poses a direct threat to others.

This doesn’t mean that an employer can ask just any question about your medical condition. The questions must be “job related and consistent with business necessity.”

Here are some examples offered by the EEOC in its Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees Under the
Americans with Disabilities Act (ADA):

Example A:

For the past two months, Sally, a tax auditor for a federal government agency, has done onethird fewer audits than the average employee in her unit. She also has made numerous mistakes in assessing whether taxpayers provided appropriate documentation for claimed deductions. When questioned about her poor performance, Sally tells her supervisor that the medication she takes for her lupus makes her lethargic and unable to concentrate.

Based on Sally’s explanation for her performance problems, the agency has a reasonable belief that her ability to perform the essential functions of her job will be impaired because of a medical condition. Sally’s supervisor, therefore, may make disability related inquiries (e.g., ask her whether she is taking a new medication and how long the medication’s side effects are expected to last), or the supervisor may ask Sally to provide documentation from her healthcare provider explaining the effects of the medication on Sally’s ability to perform her job.

Example B:

A crane operator works at construction sites hoisting concrete panels weighing several tons. A rigger on the ground helps him load the panels, and several other workers help him position them. During a break, the crane operator appears to become lightheaded, has to sit down abruptly, and seems to have some difficulty catching his breath. In response to a question from his supervisor about whether he is feeling all right, the crane operator says this has happened to him a few times during the past several months, but he does not know why.

The employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat and, therefore, may require the crane operator to have a medical examination to ascertain whether the symptoms he is experiencing make him unfit to perform his job. To ensure that it receives sufficient information to make this determination, the employer may want to provide the doctor who does the examination with a description of the employee’s duties, including any physical qualification standards, and require the employee to provide documentation of his ability to work following the examination.

Example C:

Six months ago, a supervisor heard a secretary tell her coworker that she had discovered a lump in her breast and is afraid that she may have breast cancer. Since that conversation, the secretary still comes to work every day and performs her duties in her normal efficient manner. In this case, the employer does not have a reasonable belief, based on objective evidence, either that the secretary’s ability to perform her essential job functions will be impaired by a medical condition or that she will pose a direct threat due to a medical condition. The employer, therefore, may not make any disability related inquiries or require the employee to submit to a medical examination.

3. Tell your doctor what’s going on at work.

Your doctor is a key player in any claim for leave under the ADA or the FMLA. Some doctors are familiar with the legal requirements of these laws, but many are not. To the extent that you can anticipate that your employer will contact your doctor, give him or her a heads up.

Step 1: Get a HIPAA release. You will need to sign a HIPAA release before your doctor can speak to your employer. Most doctors’ offices can help you with this.

Step 2: Get the proper diagnosis. It helps to let your doctor know what the law requires so that he or she can give your employer an accurate picture of your health condition. For instance, generalized anxiety disorder (GAD) may or may not be covered under the ADA. If your healthcare provider merely indicates a diagnosis of GAD, your employer may fight you on whether you are disabled under the act. If, however, your healthcare provider gives you a diagnosis of GAD and describes how it affects “a major life activity” or your brain function, then your employer will be less likely to win an argument that you are not disabled.

Step 3: Have your doctor read and sign any forms. Finally, sometimes your employer will give you forms for your physician to fill out related to your disability. Or you might request those forms or a letter from your doctor in support of your request for accommodation. Make sure that your doctor reads the forms and signs them.

I know this sounds like a no brainer, so how can this go wrong? This is how. The nurse tells the doctor that you have been by four times that day asking for this form. The staff wants to get you out of the lobby. The nurse sticks the form in the doctor’s face, and she signs it while simultaneously wolfing down a sandwich. This will become important if your doctor has to testify about the form.

I had such a case go to trial. At issue was whether the defendant company knew about the nature of my client’s disability and whether she was, in fact, disabled. My client had given her employer several letters signed by her physician indicating the nature of her disability. These letters were drafted by the client and signed by the physician. There is nothing wrong with this practice, if the physician agrees with the content of the letter. In this case, though, the doctor testified that he didn’t remember reading the letter. When asked why, he said something like, “I sign a lot of papers in the course of my practice. As I recall, [the client] needed for me to sign this, so I did.” Suddenly, our expert doctor looked a lot less like an expert.

Tip:

The EEOC has published a great resource regarding the ADA that you may want to share with your healthcare provider. It is titled The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work (http://www.eeoc.gov/eeoc/publications/ada_mental_health_provider.cfm).