Disclosure of Medical Information Incident to FMLA Leave Request Did Not Violate the ADA Confidentiality Provisions Where the Information was Not Obtained as Part of an Employee Health Program or Medical Examination

In Wiggins v. DaVita Tidewater, LLC, No. 4:05cv157, 2006 U.S.Dist. LEXIS 66015 (E.D.Va. Sept. 13, 2006) the employee was employed as a patient care technician at DaVita’s Hope Dialysis Clinic where she provided care to patients who suffer from chronic kidney failure.  While working at DaVita she suffered a panic attacks and nervous breakdown in front of numerous co-workers and patients.  Shortly thereafter Wiggins was diagnosed with bipolar disorder.  Even though she was not required to do so Wiggins authorized and directed her physician to disclose information about her diagnosis and medical condition to DaVita.  Because of the diagnosis, Wiggins requested, and DaVita allowed her, to take twelve weeks of FMLA leave.  Wiggins believes that her supervisor shred her confidential medical information with patients and co-workers as a number of them inquired about her recovery when she returned from leave.  Her supervisor denied that she shared Wiggins’s medical information with others.  Wiggins sued DaVita alleging that the disclosure of her confidential medical information violated the Americans with Disabilities Act.  The court disagreed. 

The Americans with Disabilities Act limits the scope of information that employers may seeks and disclose about their employees’ medical condition.  The Act permits employers to gather disability information from current employees in two ways.  First, they may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program.  Second, the employer may make inquiries into the ability of an employee to perform job-related functions.  The Act requires that all information received by employers from these two channels be kept confidential.  Courts in several circuits, however, have read the Americans with Disabilities Act to require confidentially of employee medical information only when the employer obtains this information as a result of the aforesaid employee health program or inquiry.  The Act does not protect the confidentially of voluntary disclosures initiated by the employee.  Here, the court found that, even assuming that Kyle disclosed that Wiggins was diagnosed with bipolar disorder, this communication was not an unlawful disclosure of confidential medical information under the ADA because her supervisor did not obtain the information from an employee health program or employer-mandated medical examination  Wiggins voluntarily authorized her physician to disclose her medical information to her employer.

Comment: The employee may have had better luck suing for violation of the FMLA.  The FMLA protects the confidentially of FMLA medical records.  For example, The DOL implementing regulations require that all records and documents relating to medical certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records. The DOL regulations go on to provide that, if the Americans with Disabilities Act is also applicable, such records must be maintained in conformance with the Act.  As written, the DOL regulations impose confidentially on medical records that are not covered by the Americans with Disabilities Act provided they were “created for purposes of FMLA.”  The critical phrase is undefined. Here, it is not clear that the diagnosis was communicated in writing by the employee's physician to DaVita.  If it were, Wiggins may at least have survived the employer’s motion for summary judgment had she asserted an FMLA cause of action for the employer’s breach of medical record confidentiality.  It is clear that the diagnosis was the basis for the employee’s request, and the employer’s approval of, FMLA leave. This arguably satisfies the requirement the medical information was “created for purposes of FMLA.”