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The Perils Of Producing Applicant And Employee Medical Records In Light Of The EEOC Decision

November 04, 2011 BY Def Admin

       In Bennett v. John E. Potter, Postmaster General, USPS, EEOC Dec 0120073097, 2011 WL 244217 (January 11, 2011), the EEOC addressed whether Mr. Bennett’s employer, the United States Postal Service (“USPS”), violated the Rehabilitation Act when it released Mr. Bennett’s medical information to a private party in response to a state court subpoena.  The USPS released Mr. Bennett’s medical information to a defendant in a lawsuit filed by Mr. Bennett in response to a Texas state court subpoena.  Mr. Bennett contended, and the EEOC agreed, that the USPS made an improper disclosure of its employee’s confidential medical information resulting in a per se violation of the Rehabilitation Act. 

          In reaching its decision the EEOC considered Title 1 of the Americans with Disabilities Act of 1990 (“ADA”), which typically is found to impose the same legal duties as the Rehabilitation Act.  See 42 U.S.C. §§ 12112(d)(3)(B), 4(C); 29 C.F.R. § 1630.14.  The ADA requires all information regarding the medical condition or history of an applicant or employee to be maintained on separate forms and in separate files and to be treated as confidential medical records.  The confidentiality requirement applies regardless of whether the applicant is hired or if the employment relationship ends for some other reason.  The confidentiality requirement also applies to all applicants and employees and not just those with disabilities.

          According to the EEOC decision in Bennett, there are five exceptions to the confidentiality requirement. Three of the exceptions are found in the ADA, another exception was created by the EEOC and applies when handling claims for workers’ compensation, and another is provided in the Privacy Act, 5 U.S.C. § 552a(b)(11). The ADA provides the following exceptions to the confidentiality requirement:  “[1] supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; [2] first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and [3] government officials investigating compliance with this part shall be provided relevant information on request.”  Bennett, at 4, citing 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14; Guidance I at 4.  The EEOC has also interpreted the ADA to allow employers to disclose medical information to state worker’s compensation offices, state second injury funds, workers’ compensation insurance carriers, and to health care professionals when seeking advice in making reasonable accommodation determinations.  Id., citing Guidance I at 4 n. 10.  The EEOC also noted that the Privacy Act allows for disclosure of an individual’s records “pursuant to the order of a court of competent jurisdiction.”  Id. (emphasis added),citing 5 U.S.C. § 552a(b)(11).  However, the EEOC ruled that the exception does not apply to a state court subpoena that was signed and issued by the Deputy Clerk.  Id., citing Doe v. DiGenova, 779 F.2d 85 (D.C. Cir. 1985) (holding that subpoenas are not “order[s] of a court of competent jurisdiction” pursuant to 5 U.S.C. § 552a(b)(11), unless they are specifically approved by a court”). 

          Based on its analysis, the EEOC ruled that Mr. Bennett had a per se claim of discrimination for the improper release of his confidential medical information, and he could seek damages and remedies,  including compensatory damages for out of pocket expenses, pain and suffering/mental anguish, and his reasonable attorney’s fees and other costs incurred in processing of his complaint of discrimination.  The EEOC further ordered the USPS to undertake an additional investigation to determine Mr. Bennett’s entitlement to compensatory damages and issue a decision that would be appealable to the EEOC, to provide Equal Employment Opportunity training regarding the rights and responsibilities under the Rehabilitation Act to of its officials responsible for improperly releasing the confidential medical information, to consider taking disciplinary action against the officials found to have discriminated against Mr. Bennett, and to submit a report of compliance with the decision of the EEOC.

          The takeaway from the EEOC decision is two-fold.  First, the decision provides a general overview of the requirement of confidentiality of applicant and employee medical records and the exceptions to that requirement.  Second, the EEOC held that there is no exception to the confidentiality requirement for responding to state court subpoenas, unless the subpoena is specifically approved by the Court.  Employers who respond to a state court subpoena that is signed by an attorney as an officer of the court or by the Deputy Clerk of Court by providing an applicant or employee’s confidential medical information risk a per se discrimination claim from the applicant or employee.  The best practice in handling these subpoenas moving forward should include an objection to the subpoena, citing the ADA, Privacy Act, and EEOC decision in Bennett.  An applicant or employee’s medical information should be kept confidential in light of a state court subpoena, unless and until there is an order of a Court of competent jurisdiction that orders otherwise.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley