Is “Hey, Where Are You?” An ADA Medical Inquiry?

By Michael Grubbs

The Seventh Circuit Court of Appeals recently addressed this case: An employee did not show up for work or call to report his absence. The supervisor e-mailed the employee asking him to “give us a call.” Later, the employee responded with a lengthy e-mail disclosing his serious migraine condition.  A month later, the employee quit. When a prospective employer (actually a tester engaged by the employee) contacted the supervisor, the supervisor said the employee had a medical condition that resulted in migraine headaches, not that the medical condition bothered the supervisor, but the employee didn’t call in.

The EEOC sued the employer, arguing that the employer violated the ADA requirements by breaching the confidentiality of information obtained from “medical examinations and inquiries.” 42 U.S.C. § 12112(d).

The Seventh Circuit disagreed. An employer asking and employee to “give us a call” is not a medical examination or inquiry. Thus, the employer had no duty to treat its knowledge of the employee’s migraine condition as a confidential medical record. The case is Equal Employment Opportunity Commission v. Thrivent Financial for Lutherans, No. 11-2848 (7th Cir. November 20, 2012).

Despite the sensible outcome in this case, employers should consider what would happen if the employee had disclosed genetic information, covered by GINA.  Even if an employer acquires genetic information inadvertently, it must be treated as confidential.  Maybe employers would be better off following the rule of giving only basic information: dates of employment and title.

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