Previously, I have written that, “the Americans with Disabilities Act requires that medical information obtained on an employee or prospective employee be kept confidential.” See Understanding the Americans with Disabilities Act, third edition at p. 40. However, in light of EEOC v. Thrivent Financial for Lutherans , _F.3d_, 2012 WL 5846208 (7th Cir. November 20, 2012), that statement needs to be amended to, “the Americans with Disabilities Act requires that medical information obtained as a result of a medical exam or medical inquiry of an employee or prospective employee be kept confidential,” especially if this Seventh Circuit decision winds up prevailing across the country in the other circuits.

In EEOC v. Thrivent Financial for Lutherans , the plaintiff was hired by a technology consulting agency to work as a temporary SAS programmer for Thrivent Financial for Lutherans (Thrivent). Id. at *1. When the plaintiff started work for Thrivent, he was assigned as a business analyst and the Fraternal Support Service Department and worked for four months without incident. Id. During that time, the plaintiff was very good about notifying both the consulting agency and Thrivent when he planned to be absent from work. Id. On November 1, 2006, the plaintiff failed to report to work. Id. Since the plaintiff had not notified anyone at Thrivent about his absence, his supervisor called the consulting agency to find out what was going on, but the consulting agency did not know either. Id. The supervisor at Thrivent then sent an e-mail to the plaintiff asking the plaintiff to give him a call as they needed to know what was going on. Id. Shortly before 5 PM, the plaintiff wrote a very long email to his supervisor at Thrivent detailing why he had not been in contact sooner and going into elaborate detail about his pre-existing medical conditions (severe migraines as a result of a 1984 accident that he had been in). Id. at *2. His supervisor responded to the email a few hours later urging the plaintiff to get better and to let him know if there was anything they could do. Id. Despite the plaintiff’s assurance that he was committed through the remainder of his contract, the plaintiff quit his job with Thrivent only a month later. Id. According to the plaintiff’s supervisor, a very strong disagreement on expectations happened and the plaintiff walked out on them. Id. After the plaintiff left, Thrivent and the consulting agency, he had a difficult time finding a new job and began to believe that Thrivent was saying negative things about him to prospective employers for reference checks. Id. The plaintiff hired a firm that specializes in determining what is being said in references. Id. As a result of that firm’s investigation, they found out that his migraines were being disclosed. Id. That led to the plaintiff filing a charge with the EEOC alleging disability discrimination from which the EEOC found reasonable cause. Id. at *3. When the reasonable cause letter failed to get to a settlement between the plaintiff and Thrivent, the EEOC filed suit alleging that Thrivent had violated the ADA confidentiality provisions. Id.

The question before the court was whether Thrivent when they discussed with future employers his history of migraines in the context of not letting them know what was going on, violated the confidentiality provisions of the Americans with Disabilities Act. The court said that since the disclosure was not from information that was a medical exam or medical inquiry, the confidentiality provisions did not apply. Id. at **1, 7.

In reaching that conclusion, the court reasoned as follows. First, the court cited to Merriam-Webster dictionary in saying that the phrase “medical examinations inquiries,” contained a coordinating conjunction, which are used to indicate connection or addition especially of items within the same class or type. Id. at *5. The court found it very significant that the statute used the term “and” instead of the term “or” because that indicated the intent was to talk about things of the same type. Id. That is, what the statute really says in essence is, “medical exams and medical inquiries.” See Id. Second, the court reasoned that the use of the conjunction “and,” indicated that the adjective “medical,” modifies both the terms, “examination” and “inquiries.” Id. Third, if one looks at the subject matter discussed in 42 U.S.C. § 12112(d) it becomes clear that the entire section is devoted to medical exams and medical inquiries and not to job related inquiries in the broad sense. Id. Finally, the court distinguished cases cited by the EEOC on the ground that those cases involved an employer with pre-existing knowledge that the employee was ill or physically incapacitated. Id. at **6-7. That was not the case with the plaintiff here. Instead, Thrivent was just checking up on when an employee did not show up to work. As far as Thrivent knew, the plaintiff could have had transportation problems, marital problems, weather-related problems, etc. Id. at *7. Accordingly, for all these reasons Thrivent was not required to treat the medical information that the plaintiff sent in response to his supervisor’s email as a confidential medical record. Id.

Preventive law tips: When you extrapolate this case as to how it plays out in practice after this holding, things get very interesting. On the defense side, it seems to make sense from a preventive law standpoint, to treat any medical information that you receive confidentially. After all, do you really need the litigation over whether the inquiry that your client made was a medical exam or medical inquiry? On the other hand, this decision gives the employer wide latitude with respect to any information received that is not from a medical exam or medical inquiry in terms of how that information is kept internally or how it is disclosed to others. Before exercising such wide latitude, the employer would want to be certain that a medical exam or medical inquiry was not involved. On the plaintiff’s side, things are a lot more complicated. Under this case, in order to be protected it would have to be a medical exam or a medical inquiry. Accordingly, on the plaintiff’s side, a plaintiff would want to only give a very minimum amount of information to satisfy the employer. If the employer needs more information, then the plaintiff would want to have the employer make a specific request (i.e. make a medical inquiry). Any such communication by the plaintiff could be done explicitly or implicitly. That is, a plaintiff could simply say “I am not feeling well… and be back soon.” The employee could also say something like, “I am not feeling well and if you need more information, feel free to contact me and I will have the appropriate information given to you.” The permutations are many. The problem with this decision is that it puts the burden on the plaintiff, if they want to ensure that any disclosed medical information be kept confidential, to arrange any communication with the employer about why they are missing from work in such a way so as to ensure that the employer winds up making a medical inquiry- all of which adds a bit of manipulation, if not a bit of the adversarial process as well, to the employer employee relationship.

It will be very interesting to see whether the other U.S. Court of Appeals follow the Seventh Circuit’s reasoning. Certainly, in terms of how the statute is laid out, there is something to be said for the reasoning of the U.S. Court of Appeals for the Seventh Circuit. The problem lies in how this kind of decision will be applied by employer and employees in the future and whether Congress could have really intended for that to be the result.