Question:    Under the Americans with Disabilities Act (“ADA”), are we permitted to disclose information about the disability of a physician previously employed by us in response to a reference request from a prospective employer that seeks information on the ability of the physician to perform the functions of his anticipated position?

Answer:    If the information about the physician’s disability was obtained through a “medical examination or inquiry,” the answer is “no.” Under the ADA, any information obtained regarding the medical condition or history of an employee as a result of a “medical examination” or “medical inquiry” must be “collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.”

This statutory rule contains several exceptions which permit disclosures of the information to: (1) supervisors and managers regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (2) first aid and safety personnel, when appropriate, if the disability could require emergency treatment; and (3) government officials investigating compliance with the ADA. However, none of the exceptions encompass disclosure of information obtained through a medical examination or inquiry on an ex-employee’s disability in response to a reference request.

At least one court has concluded that information about an ex-employee’s health disclosed in response to a reference request was not a violation of the ADA if the information was not obtained through a medical examination or inquiry. In EEOC v. Thrivent Financial for Lutherans, the United States Court of Appeals for the Seventh Circuit found that an employer did not violate the ADA by informing a prospective employer that the ex-employee suffered from migraine headaches. This information was obtained when the former employer contacted the ex-employee after he failed to show up for work and did not notify anyone. The court concluded that the contact was not a “medical inquiry.” As such, the information obtained about the ex-employee’s migraine headaches was not subject to the confidentiality provisions of the ADA.

Nonetheless, employers should tread carefully in this area. Other laws may come into play, such as the Health Insurance Portability and Accountability Act (“HIPAA”), especially if the employer is a health care provider and the health information of the employee was obtained during treatment provided by the employer.

For more information on the ADA and effectively managing health issues of employed physicians, please join Henry Casale, Rachel Remaley, and Charles Chulack for the Institute on Employed Physicians and Their Impact on the Medical Staff from December 4 – 6 in New York City, New York.