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.