Firefighter loses lawsuit over confidentiality provisions of ADA

published in McAfee & Taft EmployerLINC | February 16, 2018

By Elizabeth Bowersox

In an opinion handed down on February 7, 2018, the federal court of appeals that applies to Oklahoma ruled in favor of an employer in a lawsuit over the confidentiality provisions of the Americans with Disabilities Act (ADA).

Firefighter suffering from PTSD

David Perez, a combat veteran of Operation Iraqi Freedom, sued his employer after his boss told his co-workers that Perez suffered from posttraumatic stress disorder (PTSD). Perez went to work for the Denver Fire Department in 2006 after having served as a Marine for eight years, including two combat tours in Iraq. His boss at the fire department was Captain Randy Wells. His employment was uneventful until one awful day in August of 2011.

On August 17, 2011, Perez and his fellow firefighters were called to a scene where a truck had run over a young child, killing the child. The deceased child was close in age to Perez’s own son. Although Perez became understandably emotional upon seeing the child, he told Captain Wells he was “okay” and returned with the others to the fire station after completing the call.

Unfortunately, the day was not over yet for Perez. Later in the day, he and his co-workers attended a training session reviewing the use of field tourniquets. The training included photographs and statistics from military combat missions in Iraq and Afghanistan. Upon seeing the pictures, Perez became visibly upset and walked out of the training session. Captain Wells followed him outside and asked if he was okay. At this point, Perez was tearful, but responded that he was okay. Perez continued to work.

Later in the day, however, Perez met with Captain Wells to discuss his mental and emotional state. Perez decided to leave work at 3 p.m. after a fellow firefighter suggested he go home. Before he left, Perez called a group meeting of his co-workers on his shift and told them that he was going home. He also told them that he had been a Marine in combat and had lost five Marines in his unit. Perez explained that the day’s events had triggered memories of his time in combat and resulted in his becoming emotional. He did not tell his co-workers that he had PTSD. Perez did tell them that he was receiving treatment through the Veterans Administration.

Based on the events of the day, Captain Wells told his superiors that he believed Perez should be evaluated for PTSD. In early September 2011, the division chief and assistant chief told Perez that he needed to undergo a fitness-for-duty evaluation. Captain Wells was not part of this meeting. At that time, Perez first revealed that he suffered from PTSD, but that he was being treated for the condition and did not need to be evaluated. Despite this, the fitness-for-duty evaluation occurred in late September. It revealed that although Perez suffered from PTSD, he was fit for duty.

However, before the department received the results of the fitness-for-duty examination, Captain Wells told Perez’s fellow firefighters that “Perez suffered from PTSD” and that he had asked Perez be evaluated for PTSD. Captain Wells had never directly received any information that Perez did, in fact, suffer from PTSD; he was making an assumption based on the events in August.

Supervisor’s comments lead to lawsuit

Perez filed a lawsuit under the Americans with Disabilities Act, alleging that Captain Wells’ statement to his fellow firefighters that he had PTSD was a violation on the ADA’s prohibition on disclosure of confidential medical records.

Under the ADA, information obtained by an employer regarding an employee’s medical condition or history, such as through a fitness-for-duty evaluation, must be treated as a confidential medical record. Under case law that applies to Oklahoma employers, any disclosure of confidential information obtained through an authorized medical examination or inquiry constitutes a violation of the ADA.

Despite this, the court ruled in favor of the Denver Fire Department. So why did Perez lose, given that his employer clearly revealed confidential health information about him to co-workers?

Unpacking the court’s decision

The reason Perez lost is because the ADA only protects against disclosure of information learned through an ADA-related inquiry or examination. An employer cannot be liable for disclosing medical information that the employee voluntarily disclosed outside of a medical examination. Here, although Perez underwent a fitness-for-duty examination, Captain Wells’ disclosure was not based on the results of the examination. In fact, the Department had not yet received the results from the examination when Captain Wells told the firefighters that Perez had PTSD. Captain Wells was basing his remarks on the things that Perez himself had already revealed to his coworkers – that he was a combat veteran, that seeing the deceased child and pictures of combat in Iraq had triggered memories and caused him to become emotional, and that he was receiving treatment through the Veterans’ Administration. In other words, Captain Wells made a logical leap based on the information that Perez had voluntarily revealed. Under these circumstances, Perez could not prove that the disclosure was derived from an employment-related medical exam or inquiry, and he lost his case on summary judgment.

This case is similar to an older case, where an employer asked an employee “what is going on?” and the employee voluntarily revealed that he suffered from severe migraines as a result of head trauma he had experienced years before. After the employee resigned, the employer told other companies that called for a reference check that the employee suffered from migraines and had not always followed call-in procedures when he was out sick. The employee sued and lost under the same reasoning in the Perez case: it was the employee who had voluntarily revealed his medical condition, and the employer was not prohibited under the ADA from repeating the employee’s prior disclosure.

The takeaway

Employers should be comforted to know that the ADA’s confidentiality prohibition is not being expanded. Employers should recall that they do have a legal obligation to keep health-related information the employer might receive through the employer’s own inquiries or examinations confidential, and to keep the employee’s medical records separate from the general personnel file and limit access to those with a need to know. However, in this age of self-disclosure, especially through social media, it is nice to know that employers cannot be held liable for simply knowing about medical conditions that the employee chooses to reveal.

Perez v. Denver Fire Department, No. 17-1128 (10th Cir. 2/7/18)

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