By Guest Blogger Linda Carter Batiste, J.D., Principal Consultant with the Job Accommodation Network
The workplace can be like a small town – everyone seems to know everyone else’s business. But there are things that employees may wish to keep confidential and, in some cases, employers have a legal duty to comply with those wishes. One example is employee medical information. Under Title I of the Americans with Disabilities Act (ADA), employers are required to maintain the confidentiality of employee medical information with limited exceptions, such as managers and supervisors who need to know in order to implement a reasonable accommodation.
But what happens when coworkers notice that an employee has a disability or is receiving an accommodation and they start asking questions? Can employers answer the questions? The ADA confidentiality rules go beyond standard medical documents, such as doctor notes and medical questionnaires; it also applies to telling coworkers that an employee has a disability and is receiving an accommodation, so employers should be careful about how they respond when coworkers start asking questions.
According to the Equal Employment Opportunity Commission (EEOC), “an employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as ‘different’ or ‘special’ treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace.” EEOC goes on to state that an employer “also may find it helpful to point out that many of the workplace issues encountered by employees are personal and that, in these circumstances, it is the employer’s policy to respect employee privacy.” (See Reasonable Accommodation and Undue Hardship under the ADA, question 42.)
Perhaps an even better approach is to educate staff before the questions start. Employers may be able to reduce the amount of questions from coworkers by proactively conducting disability and ADA awareness training for all staff. Employers can even provide examples of the types of reasonable accommodations the ADA requires and mention the confidentiality rules. Many times employees are in favor of workplace accommodations once they are aware of them and often, as a result, no longer perceive them as special treatment.
But what about the flip side of this issue? What if an employee wants coworkers to know about his disability and accommodations? In some situations, an employee may want coworkers to know about a disability in order to enlist their help in overcoming limitations.
For example, someone with chemical sensitivity may need coworkers to refrain from wearing perfume. Explaining to them the reason why they are being asked not to wear perfume often helps encourage them to comply. Or sometimes an employee wants coworkers to know about an accommodation to keep them from resenting the employee. For example, someone with multiple sclerosis (MS) and related fatigue may need to work at home a couple days a week, but the employer does not allow other employees to work at home. Coworkers may resent what they see as special treatment and take it out on the employee with MS. The employee may want to talk to coworkers about her MS and explain why she is allowed to work at home in order to overcome any resentment toward her. How do the ADA confidentiality rules affect these situations?
It is not clear under the ADA whether an employee can waive confidentiality rights to allow the employer to disclose medical information, but as long as it’s voluntary, the employee herself can disclose to coworkers. The best approach then is to enable the employee to talk to coworkers about her disability instead of the employer doing it for her. This could be done by setting up a meeting for the employee to speak with coworkers or allowing the employee to bring in a knowledgeable speaker to discuss the disability and related accommodations.
Hopefully, this knowledge can then be used by coworkers in a positive way to support each other and improve workplace productivity.
*Note: Mayberry was a fictional community that was the setting for two television shows, The Andy Griffith Show and Mayberry R.F.D.
Linda Carter Batiste, J.D., is a Principal Consultant with the Job Accommodation Network (JAN), specializing in the Americans with Disabilities Act and other disability related legislation. She has been with JAN since 1992 and is a member of JAN’s management team. She has a law degree from West Virginia University and is a member of the West Virginia Bar, the American Bar Association and the Order of the Coif.