Happy new year everyone and hope everyone had a great holiday season.
Today’s blog entry deals with the issue of what happens when an employer doesn’t keep disability related information confidential. The case of the day is Purvenas-Hayes v. Saltz, Mongeluzzi & Bedensky, P.C. decided by the United States District Court for the Eastern District of Pennsylvania on December 15, 2023, here. As usual the blog entry is divided into categories and they are: facts; general discussion of disability related inquiries and its confidentiality provisions; discussion as to what is an acceptable inquiry under the ADA; ADA’s confidentiality requirements and injuries; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Plaintiff worked at the law firm as a litigation paralegal until July 2021. During her employment, the law firm required her to provide certain medical information, including her Covid-19 vaccination status, and she did so. In June 2022, plaintiff sued the law firm alleging that she wasn’t paid for overtime work. A few days later, the Legal Intelligencer reported that a name partner told the paper the plaintiff left the firm because she did not wish to receive the Covid-19 shot. Plaintiff alleged that she suffered significant embarrassment, emotional distress, and pain and suffering as a result of the disclosure. On June 22, 2023, plaintiff sued the law firm a second time. This time she alleged the law firm violated the confidentiality requirements of the ADA and the law firm filed a motion to dismiss.
General Discussion of Disability Related Inquiries and Its Confidentiality Provisions
- The ADA at 42 U.S.C. §12112(d)(4)(A), provides that a covered employer cannot make inquiries of an employee as to whether such employee is an individual with a disability as to the nature or severity of the disability unless the inquiry is shown to be job-related and consistent with business necessity.
- An employer may make inquiries into the ability of an employee to perform job related functions. 42 U.S.C. §12112(d)(4)(B).
- An employer receiving information pursuant to §12112 must treat the information as a confidential medical record and can only disclose it to supervisors needing to know about job-related restrictions, to first aid and safety personnel, and to government investigators evaluating ADA compliance.
- To make out a case for violation of the ADA’s confidentiality provision, a plaintiff must show that: 1) the employer obtained her medical information through an employment -related medical examination or inquiry; 2) the employer disclosed that information; and 3) the plaintiff suffered an injury as a result of the disclosure.
Court’s Reasoning As to What Is an Acceptable Inquiry under the ADA
- The ADA doesn’t define the term “inquiry,” so the term’s ordinary meaning must be looked at.
- According to the dictionaries in 1990 when Congress passed the ADA, “inquire,” meant “to seek information; ask a question or questions.”
- When 12112(d)(4)(A) prevents an employer from making inquiries of an employee as to whether such employee is an individual with a disability, it is prohibiting the employer from asking questions as to whether the employee is an individual with a disability.
- When §12112(d)(4)(B) permits an employer to make “inquiries into the ability of an employee to perform job -related functions,” it is permitting the employer to ask questions about the employee’s ability to perform those functions.
- There are two possible ways to read the word “inquiries.” First, it could mean any request (subject to the other limiting language in the statute). Second, given the ADA’s context and structure, one can reasonably read it only to mean, “medical inquiries.” Either way, plaintiff has sufficiently alleged the law firm made an inquiry of her when it required her to provide it with certain confidential medical information, including Covid-19 vaccination status, in response to a medical inquiry.
- In §12112(d)(4)(A), Congress explained the type of inquiry that an employer could not make, i.e. those as to whether such employee is an individual with a disability or as to the nature or severity of the disability. Congress’s inclusion of that limiting language show that Congress understood the word “inquiry,” standing alone was not limited to inquiries about disabilities. It is for that reason why Congress had to add language to limit the scope of covered inquiries. However, Congress did not include the same limiting language in subparagraph (B). Instead, it permitted inquiries into the ability of an employee to perform job related functions. The use of different words or terms within the statute demonstrates that Congress intended to convey different meanings for those words.
- Congress in drafting subsection (B) could have linked back to subparagraph (A), but it did not do so. It could also have defined the word “inquiry,” at the beginning of paragraph (4) but it did not do that either. Instead, it use different words to limit “inquiry,” in subparagraphs (A) and (B).
- Citing to a case we discussed here, Conroy v. New York State Department of Correctional Services, the court noted that the Second Circuit said that the ADA does not prevent all medical inquiries, but only those as to whether such employee is an individual with a disability or as to the nature or severity of the disability.
- Citing to an 11th Circuit case we discussed here, Harrison v. Benchmark Electronics Huntsville, Inc., the court said that while it is appropriate for an employer to inquire into an applicant’s ability to perform job related functions, it is illegal for the employer to make targeted disability -related inquiries.
- EEOC guidance says that questions not likely to elicit information about a disability are always permitted and they include asking employees whether they can perform job functions.
ADA’s Confidentiality Requirement & Injury
- When an employer’s inquiry of an employee yields information “regarding the medical condition or history of any employee,” the employer must treat the information as a confidential medical record. 42 U.S.C. §§12112(d)(3)(B), (d)(4)(C). So, when the law firm asked the plaintiff for her Covid-19 vaccination status, the requested information about her medical history, and she provided it, the law firm had the obligation to keep that information confidential.
- Subparagraph (B) permits inquiry beyond those that are disability related, while subparagraph (C)’s confidentiality obligation covers medical information obtained from any of those inquiries.
- Speculation about congressional intent cannot vary the meaning of the statute.
- When the named partner told the legal publication that plaintiff did not wish to be vaccinated, it is reasonable to infer that the partner was disclosing that she wasn’t vaccinated, rather than just her esoteric preference. The fact of her vaccination or non-vaccination is health information, and not just a personal political view.
- For a person to prevail for violating the ADA’s confidentiality provisions, she has to demonstrate more than a bare violation of the statute. There has to be a tangible injury, which can include emotional, pecuniary, or otherwise. The complaint makes those allegations.
- Persons with disabilities have a very sensitive antenna as to what is a disability related inquiry, and an employer would be wise to get person with disabilities involved in the process of trying to figure those things out.
- Covid-19 by itself may or may not be a disability depending upon the facts. Long Covid-19 most probably is. Regardless, Covid-19 status inquiries are disability related inquiries.
- The court does a nice job of laying out how to make a prima facie case, though the court does not use that term, when it comes to violating the ADA’s disability related inquiries and its confidentiality provisions.
- The confidentiality provision for disability related inquiries only applies to title I (employment), matters. You do not find similar provisions in title II and title III.
- Don’t forget about the scheme that the ADA has in place when it comes to medical exams and disability related inquiries, which we discussed here.
- Don’t forget about not making unnecessary medical inquiries. Title I has provisions explicitly dealing with that, as we discussed in this blog entry and in other places in the blog. The technical assistance memorandum put out by DOJ for both title II and title III has provisions prohibiting unnecessary medical inquiries.
- One wonders whether the plaintiff amended her wage and hour lawsuits to include a retaliation claim as a result of the disclosure of disability related information.
- While it is debatable under title II of the ADA after Cummings, discussed here, as to whether emotional distress damages are in play, that decision doesn’t affect title I remedies, which clearly allow for emotional distress damages.