Most employers understand their obligation under the Americans With Disabilities Act (“ADA”) to provide reasonable accommodation to employees to enable them to perform the essential functions of their job.
Employers also are becoming more familiar with the benefits and dangers of using social media to hire new employees and manage existing employees. Not many employers recognize, however, the risks that arise when social media and the ADA intersect.
The ADA requires that information relating to the medical condition of an employee obtained by an employer during “voluntary medical exams,” including voluntary medical histories, which are part of an employee health program must be collected and maintained on separate forms and in separate medical files and treated as confidential medical records. Employers may be sued for violation of the ADA’s confidentiality provisions if they disclose medical information except as permitted by the ADA and the employee suffers a tangible injury as a result of the disclosure, such as loss of employment opportunities or humiliation.
How does social media interact with these confidentiality requirements of the ADA in a way that poses liability for employers? Problems arise when those having access to an employee’s medical file disclose medical information through social media-perhaps in a totally innocuous way and meaning no harm. For example, an employee having access to medical information might post to a Facebook account which her “friends” at work see: “Let’s all wish Joe a speedy and complete recovery from his recent heart attack.”
This might seem innocent and far-fetched that such a comment could be the basis for a lawsuit, but at least one employer has been stung by a lawsuit over just such an occurrence. In Shoun v. Best Formed Plastics, 2014 W.L. 2815483 (N.D. Indiana, June 23, 2014) George Shoun suffered a work-related shoulder injury and was out of work for several months while recovering. He filed a workers’ compensation claim. Coworker, Jane Stewart was responsible for processing Shoun’s workers’ compensation claim and, as a result, had access to his medical file. She posted the following to her Facebook account:
Isn’t it amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now is trying to sue us.
Shoun became aware of the posting and sued his employer claiming that, as a result of it, he had suffered both humiliation and a loss of employment opportunities. The employer filed a Motion to dismiss the suit on the ground that it failed to state a legally cognizable claim. The Court denied the employer’s Motion and the employer’s fate will now be in the hands of a jury.
Although Mr. Shoun will have evidentiary hurdles to clear in proving that he lost employments opportunities outside his current employer, the posting could be evidence that management has a negative view of him and that such a view translates into diminished opportunity for advancement within his employer’s organization. The humiliation claim is subjective but could be supported by medical evidence if he sought psychological help. Even if successful in defending the claim, however, the employer will have spent tens of thousands of dollars doing so.
So, what is an employer to do? First and foremost, employers must be certain that medical information relating to their employees is kept separate from other employment files. Only those having a need to know employee medical information should be permitted access to those files. Employees having access must be given comprehensive training and periodic reminders as to the extreme sensitivity of employee medical information and that it may not be disclosed except to those having a legitimate need for the information given the purposes for which it was obtained. Employers should consult with experienced employment counsel to create or revise policies relating to the collection and use of medical information to avoid the potential for substantial liabilities that can arise under the ADA and other federal statutes.