Watch What You Say

By Lawrence F. Feheley

Many people are reluctant to provide any information, and especially negative information, about former employees for fear of being sued for defamation. While defamation claims are sometimes filed by former employees, they are very rarely successful.

However, in certain circumstances, employers can be held liable for information that is released about a former situation. The liability arises when medical information is divulged and, surprisingly, the liability arises under the disability law (the ADA). Although the ADA's discrimination provisions only protect those that meet the statutory definition of being "disabled," liability for the disclosure of confidential medical information arises even when the former employee is not disabled.

A recent decision from a federal district court in North Carolina proves the point. In that case, the former employee suspected that she was being given a negative reference when she could not get hired. She hired an investigator, who then called her former employer for a reference. A supervisor at the company gave her a generally positive reference but also made the negative comment about her bad back condition. When the company was sued under the ADA provision that prohibits the disclosure of confidential medical information, the company argued that the employee could not win because (a) she was not an "employee," but only a former employee, and (b) she was not a person with a disability. The court disagreed on both counts. [Heston v. Underwriters Laboratories, Inc., 2003 WL 23028437 (M.D.N.C. 2003)].

The ADA's confidentiality provision does not require that a person be disabled in order to be afforded its protections. Under the ADA, employers can divulge medical information about an employee only in limited situations, such as informing supervisors who need to be aware of the condition or in order to permit emergency treatment.

Even without the complications of HIPAA, the best advice is that no medical information about an employee, or a former employee, should ever be disclosed.