Disclosure to management by the company’s in-house physician of an employee’s alleged “lie” (or at least significant omission) made months earlier on a post-job offer medical questionnaire violated the Americans with Disabilities Act’s confidentiality provisions, a federal District Court in Maine held last week. Blanco v. Bath Iron Works Corp., D. Me., No. 2:10-cv-00429.

Medical professionals are becoming a fixture at many workplaces, whether they be occupational nurses or full scale on-site health clinics. As reported by the L.A. Times on July 3, 2011, 15% of U.S. companies with 500 or more employees had health centers last year, up from 11% the year before, and companies with 20,000 or more employees were even more likely to have clinics. However, having these resources on site can raise a range of workplace law risks, not the least of which concerns confidentiality.

In the Maine case, following his job offer, Mr. Blanco completed a pre-placement medical screening, which included filling out and signing a “Medical Surveillance History Questionnaire,” administered by the employer’s in-house physician. He did not reveal on that form that he had Attention Deficit Hyperactivity Disorder (ADHD). Mr. Blanco received good reviews for the first few months of his employment, but when he was moved to a different position, his performance began to wane. During a meeting with his manager, he attributed his poor performance to his ADHD and not long after requested a reasonable accommodation.

Mr. Blanco was referred to the same in-house physician who administered the Medical Surveillance History Questionnaire. Rather than explore the substance of his request, the physician interrogated Mr. Blanco concerning the ADHD omission on the Questionnaire. He explained that he did not understand the questions to ask about mental or emotional issues, such as ADHD. The physician refused to provide an accommodation, or even address the issue, and shortly after the physician informed management of Mr. Blanco’s omission from the Questionnaire, he was fired.

In refusing to dismiss Mr. Blanco’s complaint under the Americans With Disabilities Act and the state anti-discrimination law, the Court rejected two interesting arguments raised by the employer:

  1. Employees that lie should not be able to get protection under the ADA’s medical information confidentiality protections; and,
  2. As a policy matter, these kind of misstatements put in-house physicians “in a pickle.” The court allowed, “If the revealed condition places the employee and his co-workers at risk, the doctor’s conflicting loyalty would become a safety issue."

In each case, however, the Court said it didn’t matter to its decision that the employee may have lied on the medical questionnaire. The Court simply pointed to the statutory language, which it found clear and controlling. The court stated:

The Court agrees that whether he lied is not dispositive since the confidentiality provision does not apply only to truthful information. But this does not assist the Defendants. The ADA clearly protects the confidentiality of Mr. Blancos’ response if truthful and the ADA still protects its confidentiality if not. In other words, there is no prevarication exception to the ADA’s confidentiality mandate for employment entrance examinations, much less for information the company doctor perceives is inaccurate. It is the information, accurate or not, that the statute protects.

In response to the conflicting loyalty argument, the Court reasoned:

The brief answer, however, is that these policy arguments do not trump the statutory language. Congress, not this Court, is a policy-making body, and the Court is duty-bound to follow the law as enacted by Congress. Congress may or may not have considered whether to carve out a disclosure exception for instances where the employer concludes that the employee lied or misrepresented his pre- employment medical or mental condition. In any event, there is no such exception in the statute.

More than ever, businesses are realizing that comprehensive approaches to disability and leave management not only can mitigate compliance and litigation concerns, but also can enhance employee productivity and, therefore, profit margins. For these companies, on-site health clinics, occupational health clinics, and in-house physicians can be attractive options. However, as this case makes clear, employers need to be mindful of the workplace law risks. The ADA may be one source of such risks.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.