What’s Going On? Medical Inquiry Under The ADA?

Question:  If an employer asks “what’s going on?” and the employee responds by disclosing medical information, is that medical information subject to the confidentiality provisions of the Americans with Disabilities Act (ADA)?

Short Answer: No.  The Seventh Circuit limited the EEOC’s expanding interpretation of the “medical inquiry” provision of the ADA. 

The Facts: Gary Messier, employed by Omni Resources Inc., was on assignment at Thrivent. One day Messier did not show up for work at Thrivent so Thrivent called Omni looking for him. Omni emailed Messier asking him to contact them and stating “we need to know what’s going on.”

Messier responded via email explaining that he had a severe migraine and that he suffered from migraines since a car accident more than 20 years ago.  One month later, Messier’s employment at Omni and assignment at Thrivent were terminated.  Mr. Messier subsequently hired a reference checking agency. The reference checking agency contacted a Thrivent employee, who informed the agency that Messier gets migraines.

Mr. Messier filed a charge with the EEOC, who filed suit against Thrivent.  Messier alleged that by disclosing his migraine headaches to a third party, Thrivent violated the confidentiality provisions of the ADA, which require that medical information obtained from employees from “medical examinations and inquiries” be kept confidential.  Thrivent claimed that the information was not confidential because it was not obtained through medical inquiry or medical examination.

The Ruling: The Court held that with regard to the provisions in the ADA, the word “inquiries” does not refer to all generalized inquiries but only to medical inquiries. The Court also noted that when other courts have concluded that there might have been a “medical inquiry” courts have required, at a minimum, that the employer already know something was wrong with the employee before initiating the inquiry in order for that inquiry to be a covered inquiry under the ADA.  In this case, neither Thrivent nor Omni had any knowledge of Messier’s history of migraines.  In addition, a response to the question “what’s going on” could have brought forth any number of responses such as transportation problems, weather-related issues, or any number of logistical problems. 

The Bottom Line:  In order to run your business, you have to know where your employees are, especially if they're not at work when they're supposed to be there.  Its fine to ask what's going.  If the employees voluntarily discloses medical information, its not subject to the confidentiality provisions of the ADA.

Best Practices:  Regardless of the Court's decision, employers should take steps to ensure any medical information received from an employee is treated as confidential.  This will help to avoid litigation but it will also assure employees that their circumstances will be treated with discretion. 

Employers should designate a manager or human resources representative as the employee authorized to respond to inquiries relating to former or current employees.  Employers should also make every effort to instruct these designees on appropriate responses. 

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