An employer’s email to a “no call/no show” employee asking “what is going on” is not a “medical inquiry” under the Americans with Disabilities Act and therefore did not need to be treated as a confidential medical record, the U.S. Court of Appeals for the Seventh Circuit has ruled. EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (7th Cir. Nov. 20, 2012). Affirming dismissal of the U.S. Equal Employment Opportunity Commission’s lawsuit, the Court found the employer had no reason to believe its employee’s absence was related to a medical condition; thus, its inquiry about the absence was not a medical inquiry. The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.
Gary Messier worked for Omni Resources, Inc., a technology consulting agency. Omni assigned Messier to work at Thrivent Financial for Lutherans as a business analyst under the supervision of Thrivent Financial employee John Schreiner. Messier worked at Thrivent Financial for almost four months without incident. During that time, he was “very good about notifying” both Thrivent Financial and Omni when he planned to be absent from work.
On November 1, 2006, Messier failed to report to work. Because he had not notified anyone at Thrivent Financial about his absence, Schreiner called Messier’s Account Manager at Omni, Thomas Brey. Brey sent an email to Messier asking him to call and saying, “We need to know what is going on.” Later, Messier sent Schreiner and Brey a detailed email explaining that he had been bedridden for the day with a severe migraine and outlining his lengthy medical history. About one month after this incident, Messier walked out of his job with Thrivent Financial after a disagreement arose regarding job expectations.
When Messier began looking for new employment, three prospective employers lost interest in him after conducting reference checks. Concerned, Messier hired Reference Matters, Inc. (“RMI”), an online reference checking agency, to find out what Schreiner was saying. RMI contacted Schreiner pretending to be a prospective employer interested in hiring Messier. During the conversation, Schreiner disclosed that Messier had suffered from migraines, and stated, “I had no issue with that. But he would not call us. It was the letting us know.”
Messier filed a charge with the EEOC, and the EEOC sued Thrivent Financial for violating the ADA’s confidentiality provisions by “revealing to prospective employers Messier’s confidential medical information obtained from a medical inquiry.” Thrivent Financial asked the trial court to dismiss the lawsuit because it had not obtained information about Messier through a medical inquiry. The trial court agreed, and the EEOC appealed.
The ADA’s prohibition against disability discrimination includes a restriction on making certain medical examinations and inquiries, although employers may make inquiries regarding an employee’s ability to perform job-related functions. In addition, medical information obtained by an employer as a result of a medical inquiry or medical examination must be kept confidential and maintained in separate, secure files.
EEOC’s Broad Interpretation of “Inquiries” Rejected
On appeal, the EEOC argued the ADA’s confidentiality provisions protect all employee medical information revealed through any “job-related” inquiries, not just medical inquiries. The appellate court rejected the EEOC’s “liberal interpretation” of “inquiry” because it ignored the specific context in which the term was used in the ADA. The Court observed that the title of the statutory provision is “[m]edical examinations and inquiries.” By using the inclusive conjunction “and” in the title, the Court found, the word “medical” modified both “examinations” and “inquiries.” The Court also pointed out that the sentence preceding the “job-related” inquiries language discussed permissible employer-initiated medical activities regarding an employee’s medical health, including examinations, histories, and health programs. The following sentence, the Court said, continued the “discussion of permissible employer-initiated medical activities, including job-related inquiries regarding an employee’s medical health.” Therefore, reading the provision as a whole, the Court concluded that the reference to “inquiry” necessarily referred to medical inquiries.
The Court also found Thrivent Financial had no reason to know that Messier’s absence was related to a medical condition; he had not been sick or had a headache at work during the course of his employment. For all Thrivent Financial knew, the Court reasoned, Messier’s absence was just as likely due to a non-medical condition as a medical one. When Brey emailed Messier on November 1, 2006, he had no idea that Messier was ill, let alone disabled. Consequently, the Court determined, the email could not have been a medical inquiry, and Thrivent Financial was not required to treat Messier’s response as a medical record subject to the ADA’s confidentiality provisions. Accordingly, the Court affirmed dismissal of the case.
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This decision will be welcomed by employers, as the Court limited employers’ obligations under the ADA’s confidentiality provision, at least in situations where the employer receives “too much information” from an employee. That being said, employers should note that, although Thrivent Financial avoided liability under the ADA for its disclosure of its former employee’s medical information, other privacy laws could come into play in providing references. Employers need to have a clear policy in answering reference inquiries, such as one limiting responses to confirming dates of employment and positions held. To minimize liability, prudent employers should take care to maintain the confidentiality of employees’ medical information, regardless of how it is obtained.