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Company Manager Did Not Violate ADA’s Confidentiality Provisions In Telling Prospective Employer About Former Employee’s Health Condition

By on September 1, 2011 in ADA with 0 Comments

Sometimes the cases with the most simple fact patterns make the best ones to understand bright lines in the law.  The case of EEOC v. Thrivent Financial for Lutherans, 2011 U.S.Dist. LEXIS 64042 (D. Wisc. 2011) provides some clear guidance on what employers can and cannot say about the health of employees. In this case, it was a comment about a former employee that was the principal issue.

Gary Messier worked for and was placed by Omni Resources, Inc., a technology consulting agency, with Thrivent Financial in Appleton, Wisconsin. Thomas Brey was Messier’s account manager at Omni, and John Schreiner was the manager of the Thrivent department where Messier was assigned to work.        

On November 1, 2006, Messier did not appear at work nor alert anyone that he would not be coming in.  Schreiner called Brey at Omni to inquire about Messier’s absence.  Eventually Messier was reached by email and sent a long responsive email to Brey and Schreiner.  In that email Messier revealed that he had suffered from debilitating migraine headaches for many years.  The headaches were so incapacitating that he could not even respond to anyone or call anyone due to the intensity of pain.  He said that if all went well, he would be in work the next day.   

One month later Messier quit his job with Omni and Thrivent and commenced looking for other employment.  He quickly deduced that Schreiner was providing a negative reference to his prospective employers.  Messier hired Reference Matters, Inc., a reference checking agency.  On January 10, 2011, Reference Matters called Schreiner and Schreiner indeed disclosed information about Messier’s migraine condition to the representative.

In his lawsuit Messier argued that Thrivent violated Section 102(d)(4) of the Americans with Disabilities Act.  That provision deals with confidentiality of medical information.  The District Court disagreed with the EEOC and said, “Under its plain meaning, Section 102(d)(4) protects only that information which an employer acquires through a medical inquiry or a medical examination.  The statute focuses on the employer’s active role in the disclosure and thus does not protect any disclosure of medical information to an employer no matter how it arises.”

The court reviewed the leading cases on breach of confidentiality under theADA.   They said that Mr. Brey and Mr. Schreiner did not specifically request or require that Messier disclose information about a medical condition, which is the key difference between some of the other federal court decisions where violations of confidentiality were found.  All they did was inquire why he had an unexcused absence from work.  They also did not ask Messier questions that were likely to elicit specific information about a medical condition.  As such, Messier’s disclosure about his migraine condition was entirely voluntary.  The court found that discussing a voluntary disclosure to a third party is not a violation of theADA’s provisions on confidentiality according to the court.

This case is extremely helpful to employers in understanding which discussions about health conditions of employees could violate confidentiality and which do not.  If an employer gains medical information by asking questions about health or asking someone to fill out an FMLA form, that information must be treated confidentially.  However, if an employee voluntarily discloses medical information as happened in this case, the subsequent disclosure of that information does not violate theADA.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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