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Question: I am a human resource manager for a New Hampshire company. Employees are complaining and asking why one of their co-workers is being given extra breaks and never has to work the 2nd or 3rd shift. Can I tell them it is because he has diabetes? He already told everybody in the shop that he has diabetes.
Answer: No, you cannot disclose this information to co-workers. The Americans with Disabilities Act (ADA) prohibits employers from discussing an employee's medical condition with other employees except in very limited circumstances, which do not include disclosure to co-workers. This is true even if the employee has already disclosed his condition to co-workers or has an attack or displays other symptoms of his condition in the workplace.
To address the problem of co-worker curiosity and the perception that colleagues are receiving special treatment, the Equal Employment Opportunity Commission ("EEOC") recommends that employers should respond by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer may also point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer's policy to respect employee privacy. Further, the EEOC recommends that employers provide information to all employees — in advance of these specific questions being asked — about the various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act) while at the time requiring employers to maintain employee confidentiality.
The EEOC also notes that as long as there is no coercion by the employer, an employer can discuss with the disabled employee whether he wants to voluntarily disclose his medical condition and the accommodations the employer is providing to co-workers. In doing so, an employer must be careful to clearly communicate to the employee that it is his sole choice what will be disclosed, if anything. Even after such disclosure by an employee, the employer is still prohibited from discussing with other employees the person's medical condition or accommodations the company is providing to the employee.
The limited circumstances when the ADA and EEOC provide that an employer can disclose an employee's medical condition are:
- to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee's work restrictions;
- to first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work;
- to individuals investigating compliance with the ADA and similar state and local laws; and,
- where needed for workers' compensation or insurance purposes (i.e. processing a claim).
In each of the above circumstances, an employer should remind the person(s) to whom the information is being shared that the information must be kept confidential, except of course for the purpose for which it is being shared. This is most important when sharing information with supervisors and managers.
Take Away/Practice Tip
A large number of workplace disability discrimination claims occur because an employee's direct supervisor (1) is not aware of how broad the term "disability" is defined under the ADA; (2) does not recognize an employee's request for an accommodation, because the employee has not specifically referenced the ADA; or (3) does not know that they are prohibited from discussing an employee's medical condition or workplace accommodations with others. Every company should train its supervisors and managers on the basics of the ADA's broad disability coverage and its accommodation and confidentiality requirements. In addition, every time a supervisor/manager is informed of an employee's medical condition, the supervisor should also be reminded of the requirement of confidentiality regarding the information, and that he/she must not discuss the matter with other employees even if those employees already know about the condition. Employees should also be trained on workplace policies governing disability, harassment, and medical leaves.
Please contact any member of Devine Millimet's Labor, Employment and Employee Benefits Practice Group with questions you have about confidentiality of employee medical information, or supervisor and employee training.
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