You Posted My Medical Information on Facebook?!?!?

The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals and ensures equal opportunity for persons with disabilities in employment. An employer is required to make a reasonable accommodation to an employee’s known disability if it would not impose an undue hardship on the employer’s business. In the course of exploring an employee’s limitations to consider possible accommodations, employers routinely obtain employees’ medical information as part of the interactive process the ADA requires. However, the ADA also mandates that employers keep employee medical information confidential and protect it from disclosure. Specifically, it requires that any information relating to a medical condition of an employee obtained through employment related medical examination and inquiries must be treated as a confidential medical record. A recent case illustrates the challenges this obligation can create (and the baffling things employees sometimes do…).

In the recent matter, the court determined a company may be liable to an employee whose confidential medical information was disclosed on another employee’s Facebook page. The situation began when an employee spent several months away from work recovering from a workplace injury. The company employee responsible for processing workers compensation claims prepared an accident report regarding the injury and alerted the insurance carrier. Through the course of monitoring the injured employee’s medical treatment, the company employee became aware of nature and extent of the injury.

Unfortunately, the company employee handling the workers compensation claim posted the following on her Facebook page, “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work , especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The injured employee proceeded to sue his employer for violating the ADA’s confidentiality provision, asserting that the Facebook post was a deliberate disclosure of his medical record and had caused prospective employers not to hire him. The court rejected the employer’s attempt to have the claim dismissed because the injured employee had publically disclosed his medical condition and allowed the claim to proceed against the employer. That employer must now defend against the substantive allegations in the lawsuit.

Employers must pay close attention to how employee medical information is obtained, how it is stored, and who has access to the information. In order to ensure the confidentiality of employee medical information is protected, employers should have clear policies and train employees regarding the importance of keeping the information confidential. In previous issues, we have warned employers of the National Labor Relations Board’s negative view of overly restrictive social media policies, such that there could be an understandable hesitance to impose restrictions on anything employee’s post on social media these days. However, employers also have the right – and the obligation – to protect truly confidential information such as trade secrets and employee medical information. A simple prohibition against any disclosure of confidential medical information, including through social media, will help employers avoid claims for violation of the ADA’s confidentiality requirements.