ADA confidentiality not a “sword” to protect job application falsification

The discovery and sharing of false medical information from an employee’s initial medical examination four years later when he was returning from a medical leave of absence, turning that false information over to the labor relations department and to his supervisor, was not a violation of the ADA’s confidentiality requirements for disclosures in the process of medical examinations and inquiries. A federal district court in Michigan accordingly granted summary judgment to the employer (Dillon v Norfolk Southern Railway Co, July 31, 2014, Rosen, G).

Employment entrance examination. During its 2007 hiring process, the employer conducted a medical examination to ensure that the employee was fit for duty, which included a medical history questionnaire. When asked if he had any “hospitalization or surgical procedures,” the employee answered “No.” When asked if he had a “[m]issing/impaired hand, arm, foot, leg, finger, toe,” the employee answered, “No.” He also signed a release stating that he understood his employment could be terminated if it was determined that his answers were untrue. The employee passed the test and was hired.

Falsification discovered. Four years later, the employee injured his leg and took a medical leave. When processing the paperwork to allow him to return to work, a nurse discovered that the employee failed to disclose a prior broken left femur, requiring hospitalization and the insertion of a titanium rod. She informed the associate medical director, who directed her to consult with the Labor Relations Department to determine if they wanted to take administrative action, and he sent a memo to the employee’s supervisor. The assistant division superintendent conducted an investigative hearing under the employer’s collective bargaining agreement, and then it terminated his employment.

The employee filed suit, claiming that when the employer’s Medical Department disclosed his prior injury to the Labor Relations Department and to his supervisor, it violated the ADA’s provision governing confidentiality of information disclosed during medical examinations. The employer argued that the ADA does not protect employees from misrepresentations. Both parties moved for summary judgment.

Employee’s claim related only to confidentiality issue. At issue was only whether the employer kept medical information that it obtained pursuant to an employment entrance examination confidential. The employee did not challenge his termination, nor the employer’s use of medical examinations. The court pointed out that the employee’s claim might have been more properly categorized under ADA Sec. 12112(d)(4)(B) relating to prohibited medical exams because the disclosure of his leg injury occurred as a result of an inquiry during his employment relative to his ability to return to work, but this was not raised, so it was a nonissue.

Employee’s narrow theory of the case. The employee argued that the only exceptions to an employer’s duty to keep all medical information obtained during an employment entrance examination confidential are those the exceptions specifically set forth in the statute, relating to work restrictions, emergency treatment, and government investigation. The employer’s disclosure here did not fall within these three express subsections. In several cases, the employee argued, courts have interpreted Section 12112(d)(3)(B) narrowly, finding that confidentiality was breached when an employer turned over employee medical information from an employment entrance examination to a workers’ compensation claims representative, to an in-house physician, and a workers’ compensation manager, respectively. In each case, the court found that these individuals did not fall under one of the three exceptions in the statute for disclosing medical information.

Statute prevents discrimination, not falsification. The court disagreed with this narrow interpretation, citing the Sixth Circuit opinion in Lee v City of Columbus for the proposition that Section 12112(d)’s use of the phrase “confidential” is meant to be interpreted in the light of preventing employers from discriminating on the basis of information gleaned from job-related medical examinations. Guidance from the EEOC and other courts confirms that the statute’s confidentiality provision cannot be used to protect an employee from an adverse action that was made not on the basis of a disability, but rather upon the employee’s failure to disclose requested information during an employment entrance examination. The court held that an employer may fire a person who provides a false answer to a post-offer inquiry about his condition.

Need to know basis. The disclosure in this case was lawful because individuals other than the Medical Department, specifically, the Labor Relations Department and his supervisor, needed to know the information about the employee’s failure to disclose his prior injury so that they could commence a hearing and evaluate whether to take action against him. Relying on the EEOC’s guidance stating that employers are allowed to share medical information with individuals who need to know the information (and Seventh Circuit precedent holding that an employer did not violate the confidentiality provision by providing the results of an applicant’s medical examination to hiring managers because the hiring managers needed to know the results), the court held that decision makers may have access to an employee’s medical information for the purpose of making an employment decision that is consistent with the purposes of the ADA.

Here, the court found the disclosure lawful; there was nothing in the record indicating that the employer disclosed the employee’s information to anyone who did not need to know, or that the information itself was used to take an adverse action against the employee. Further, the employer took steps to limit the information that was disclosed by redacting information not pertinent to the disciplinary investigation.

Absurd result. Any other holding would lead to an absurd result, said the court. If the court accepted the employee’s interpretation of Section 12112(d), then there would be a no-win situation for the employer. If an employee provided false information that later came to light, then the employer would be forced to either take adverse action and risk liability, or take no action and encourage employees to be dishonest. The purpose of the ADA is to eliminate discrimination against individuals with disabilities; the protective shield of the statute should not be used by employees as a sword to defend against dishonest conduct.
By Victoria C. Cohen, J.D.