Confidentially Speaking: Be Very Careful With All Medical Information

By Dan Gephart, September 11, 2023

The overworn idiom about the road to a certain scorching and undesirable place (no, I’m not talking my former state of residence, Florida) being “paved with good intentions” applies to the Rehabilitation Act. Just replace the H, the E, and both hockey sticks with an even spookier term — compensatory damages.

In Complainant v. GSA, EEOC Appeal No. 0120083575 (2009), that amounted to $3,000.

The lesson of Complainant v. GSA is this: When it comes to medical records or any information about an employee’s medical condition, you must remember the information is confidential. It should not be shared except in limited prescribed circumstances – and good intentions is not one of those circumstances.

The employee, who had multiple disabilities, had moved between jobs while working for the agency over a decade. When one job ended due to lack of work, the employee was transferred to a warehouse facility. Instead of reporting to the new workplace location, she applied for the agency’s voluntary leave program.

Her application contained a certification from her doctor stating that she suffered from “panic disorder without agoraphobia, adjustment disorder unspecified, and occupational problems.” The application also noted that the complainant had a negative sick leave balance of 231.7 hours and had used 240 hours of advanced sick leave.

The employee’s request for voluntary leave was approved.

Everyone is happy. Great solution. End of story, right? Umm, not so fast.

While soliciting voluntary leave donations for the employee, her supervisor emailed coworkers and happened to mention the employee suffered from PTSD/anxiety disorder “with” agoraphobia.

As a result, the employee experienced a drastic increase in insomnia, anxiety, stress, major depression, emotional distress, shame, loss of self-esteem, and radical weight fluctuations. It’s more powerful in her own words:

I was at least able to hide my mental conditions before my diagnosis was publicly released. After my diagnosis was released, I suffered nausea and pain in my stomach for several weeks. My head hurt me constantly. I was too depressed and ashamed to leave my home unless it was for something that was absolutely necessary such as to buy food or other necessities. I tried to hide when I was in public for fear of running into someone that saw the email. The subject e-mail was even forwarded outside of the agency.

There was not a widespread email in Becki P. v. Dep’t of Transportation, EEOC No. 0720180004 (2018). Nor was there any mention of a specific disability. Yet, the results were similar.

A supervisor had a heated discussion with an employee. After the employee left, the supervisor tried to explain the employee’s behavior to a contract employee who had witnessed it. The supervisor told the contractor the employee is “on medication.”

This, FELTG Nation, is a per se violation of the Rehabilitation Act.

Once again, the disclosure caused distress for the employee with a disability. In the employee’s words:

It became known around the office that I was on mental medication and my symptoms-psychological and physical-worsened. I felt greatly embarrassed and I was deprived of my dignity. I felt even greater distress and sadness, fell into a deeper depression, and became more withdrawn.

The AJ awarded the employee $1,000. Upon review, the commission determined an award of $2,000 was more consistent with awards in similar cases.

It’s important to note that there were multiple claims in each of these cases, and yet the only finding of discrimination in both was for the inappropriate disclosure of medical information.

Join us next week (Sept. 18-22) for Absence, Leave Abuse & Medical Issues Week where leave, medical records, confidentiality, and more will be discussed. Click here for the day-by-day description and register here for one day, all five days, or anything in between. Gephart@FELTG.com