Quirky Question # 163:
One of our employees recently claimed that he is entitled to a reasonable accommodation of his physical disability (a serious back problem). We were unable to work out an accommodation for the employee (we probably did not do as much as we should have during the negotiation phase) and we terminated his employment. He then sued us under the Americans With Disabilities Act.
We’re now involved in discovery. We’ve asked for all of his medical records – both physical and mental. His lawyers have authorized us to obtain access to all the medical records relating to his physical infirmities but have refused to provide us access to his mental health records.
Aren’t we entitled to this information? What if the mental health records demonstrated that he is not really capable of performing the essential functions of the job? Moreover, given the close relationship between physical and mental health, shouldn’t we be able to get access to this information? What if his maladies really are psychosomatic?
The question you pose arises in many different kinds of employment cases, including many that do not implicate issues of disability discrimination. Employers often seek to obtain information regarding the plaintiff-employee’s medical records, including information relating to the employee’s mental health issues.
It is not difficult to construct arguments regarding why and how this information could be relevant to the defense case. As in the fact pattern you describe, is the employee’s physical problem exacerbated by his mental health issues? Or, as you ask, is the physical problem a legitimate health issue or is it entirely psychosomatic?
As noted, a defendant’s access to a plaintiff-employee’s mental health records can arise in many contexts other than disability discrimination. Most state anti-discrimination statutes contain provisions allowing for the recovery of pain and suffering, or emotional distress, damages. Many defendant-employers, therefore, believe that it is appropriate to explore the plaintiff’s mental health in every type of discrimination case. Often, this exploration includes discovery seeking the plaintiff’s medical records pertaining to the employee’s mental health.
It is not a far leap to argue that if the plaintiff is seeking emotional distress damages and if there are medical records bearing upon the employee’s mental health, there could be relevant in at least two ways. First, the records could help establish whether the emotional distress was caused by conduct about which the employee complained. Did the employer’s behavior cause the emotional trauma or were there other causational factors that more accurately explained the employee’s emotional condition? Would these potential alternative explanations be revealed by his/her mental health medical records? For example, a plaintiff may be complaining about workplace discrimination (race, sex, age, etc.) and arguing that these workplace events caused emotional injury. But what if there were multiple events in the employee’s life at or after the allegedly discriminatory conduct that were more likely to cause emotional trauma? By way of illustration, this could include the death of a spouse or child, a bitter divorce, financial hardship, etc. As employers logically argue, isn’t this information relevant to the true “cause” of the pain and suffering? And, aren’t an employee’s mental health records likely to contain data bearing upon this issue? Second, these records might bear on the severity of the employee’s emotional trauma. The medical records, particularly mental health records, might shed light on the seriousness of the emotional trauma.
Despite these considerations, there are other factors to consider. And this is what makes employment law so intrinsically interesting. As I have suggested in other Blog posts, employment law often balances competing societal interests and values. In this context, the competing interests are: a) an employer’s legitimate interest in determining the true source of an employee’s pain and suffering damages and the desire to see the records that may contain directly relevant information regarding this issue; and b) an employee’s privacy rights and the sanctity of the physician-patient privilege.
Not all courts resolve this balance in precisely the same way. Some lean more heavily on the employer’s interest in obtaining arguably relevant data. Others place greater value on the employee’s privacy rights and the importance of the physician-patient relationship. In recent years, the balance appears to be tilting more heavily toward the employee’s legitimate interests.
Last month’s case of Kronenberg v. Baker & McKenzie LLP, Case No. 09-cv-04137 (E.D. Ill., Oct. 15, 2010), which parallels the facts you describe in your question, illustrates this point well. (As a prefatory observation, I should note that the Magistrate Judge Jeffrey Cole’s decision in Kronenberg is very well written and analyzed. The opinion provides a well-articulated analysis of the issues and references a compendium of relevant authority. For those of you confronting a similar issue, this case will provide useful guidance and insights.)
The Kronenberg facts are relatively straightforward. Kronenberg was hired as an associate by Baker & McKenzie (Baker), one of the nation’s largest law firms. Kronenberg claimed that Baker failed to accommodate his physical disability – a chronic degenerative spinal condition. There was little doubt that Kronenberg had serious physical problems. He had experienced severe back problems for many years, and had undergone major back surgery. At times in his life, the back pain and the associated nerve damage had rendered Kronenberg unable to walk, stand, or sit up.
Following his surgery, however, Kronenberg’s condition improved significantly. During this period of improved movement and function, Kronenberg obtained his job at Baker. Unfortunately, both for Kronenberg and Baker, about two years after being hired, Kronenberg’s back condition worsened, making it difficult for him to work for extended periods at a computer, arguably one of the essential job requirements for many law firm associates.
Kronenberg sought an accommodation from his employer – either a medical leave or some other type of accommodation. Here, the fact pattern becomes somewhat perplexing. According to the plaintiff, the law firm (specifically, his supervisor) failed even to respond to his repeated requests to meet for the purpose of discussing his physical problems and his need for an accommodation. Kronenberg followed up by making written requests for an accommodation, which also were ignored by his employer. Baker granted Kronenberg “administrative leave,” which it later converted into “indefinite administrative leave.” During his leave, Kronenberg proposed various types of accommodations and also invited Baker to devise an alternative accommodation if his proposals were unacceptable. Baker did not respond until it advised him that his employment was being terminated. After receiving this notification but before his discharge, Kronenberg again sought, in writing, an accommodation. Again, his requests were disregarded and he was fired.
Kronenberg’s discharge led to his lawsuit. In the litigation, Baker sought broad medical authorizations from the plaintiff, including authorizations to access his mental health records. Kronenberg provided Baker authorizations for all medical records relating to his back problems and treatment, but balked at providing authorizations allowing Baker access to his mental health records. Baker brought a motion to compel this discovery, which led to the opinion referenced above.
As the court eloquently stated when framing the competing societal issues:
“All evidentiary privileges are vexatious in their immediate impact since they impede the search for the truth. It is for that reason that they are construed narrowly. [Citations omitted.] But neither law nor life is governed, to borrow Toynbee’s lambent phrase, by a ‘single supreme simplicity.’ There are values and deeply felt intuitions of public policy beyond the search for truth that must be weighed in the balance. One of the interests of transcendent importance is the mental health of the Nation’s citizenry. To promote that vital public interest, the Supreme Court has recognized a psychotherapist-patient privilege in the federal courts. Jaffee v. Redmond, 518 U.S. 1 (1996). And consistent with the importance attached to that vital public interest, the Court in Jaffee rejected any balancing test that would allow a judge, in determining questions of privilege, to weigh the privilege against the asserted need for evidence.”
As the Magistrate Judge emphasized, the cases “teach that a plaintiff in an ADA case does not forfeit his psychotherapist-patient privilege merely by asserting a physical ‘disability’ . . .” The court noted, however, that like other privileges, the “psychotherapist-patient privilege may be waived.” The court stressed the basic principle of fairness that a party cannot “inject his or her psychological treatment, conditions, or symptoms into a case and expect to be able to prevent discovery of information relevant to those issues.” Like much of employment law, the waiver issue must be determined on a case-by-case basis.
You undoubtedly have deduced that the court rejected Baker’s argument that it was entitled to gain access to Kronenberg’s mental health records. The court noted that if Baker’s argument were accepted (Baker contended it needed the mental health records to ascertain whether Kronenberg could perform the essential functions of the job) the psychotherapist-patient privilege would “effectively cease to exist” and that, henceforth, there “could be no psychotherapist-patient privilege in an ADA case.”
Given its analysis, the court denied Baker’s motion to compel. It concluded that “Baker is not entitled to rummage around in Mr. Kronenberg’s privileged and confidential mental health records on a scavenger hunt for nuggets of evidence, previously unknown to and not relied on by Baker in this case, which may be used to reimagine another reason why it did not believe that Mr. Kronenberg was a ‘qualified individual’ at the time of his termination.”
Of course, it is important to understand that I am not discussing cases where a plaintiff-employee has put his/her mental health directly into issue. The Kronenberg court also made this point abundantly clear. For example, in a mental health disability case, an employer clearly would have the right to access the employee’s mental health records. What was the mental health diagnosis? How long has the employee been receiving treatment? Has the employee been treated with prescription medications? If so, what drugs, in what amounts, for how long? What are the side effects of these drugs? If the employee ceased using the drugs, how might this affect the employee’s behavior? These, and many other questions, would be appropriate in a mental health disability case. The answers to these inquiries may be critical to determining whether the employee could perform the essential functions of the job, with or without an accommodation. Similarly, if an accommodation would enable the employee to meet the employer’s performance expectations, what would be an appropriate accommodation for that employee?
Even in cases not involving a mental health disability, a plaintiff-employee may put his/her mental health issues directly into controversy. For example, an employee may assert a claim for intentional or negligent infliction of emotional distress. When these claims are asserted, the employee has placed his/her mental health into issue. Likewise, an employee may argue specifically that the employer’s conduct caused serious mental health problems, such as severe depression or suicidal ideation. The employee also might contend that the employer’s actions caused him/her to begin using prescription meds (anti-depressants or other drugs) for the first time in his/her life. In these contexts as well, courts are very likely to require the employee to authorize access to his/her medical records notwithstanding the competing privacy and privilege interests referenced above. But, as noted above, when those issues are not part of the calculus and the courts are confronting a more typical case where mental health issues do not predominate, the employer’s entitlement to access these records is questionable.
There are a number of practical lessons from the Kronenberg case that apply directly to the questions you posed.
First, as just discussed, the patient-psychotherapist privilege will not apply where the plaintiff-employee has put his/her mental health directly into issue. A tougher call, but one which courts appear to be resolving more frequently in favor of employees, is whether an employer can gain access to these records merely because the statutory damages include pain and suffering or emotional distress. Monitor this issue carefully. Even if your company may not be able to access your former employee’s mental health records now, depending on the case unfolds that calculus may change.
Second, like other recognized privileges, the patient-psychotherapist privilege provides protection to employees (and others). Barring an unanticipated development in your litigation, you most likely will not be succeed in your efforts to compel the production of your former employee’s mental health records.
Third, as the Kronenberg case illustrates (and as you generally allude to in your question), you should fully explore (as you are required to do) the possibility of a reasonable accommodation when an employee informs you that he/she has a disability. Engage in the negotiation process mandated by the statute and demanded by the EEOC. At a minimum, you will gain useful information that will help you evaluate whether a reasonable accommodation can be reached. You may discover that your employee can contribute meaningfully to your organization. Or, you may discover that trying to provide an accommodation would cause your company an undue hardship. Either way, you will be far better informed. While you may have passed that point in your current situation, I’d encourage you to modify your approach prospectively when employees contact your HR group or their supervisors seeking a disability accommodation.