Plus, it may violate the Americans with Disabilities Act too.
How one company’s alleged blunder turned into an ADA lawsuit and a blog post at http://www.theemployerhandbook.com…after the jump…
In Shoun v. Best Formed Plastics, Inc., the plaintiff allegedly suffered a bad shoulder injury at work. And, after the plaintiff reporting it, the person who processed worker’s compensation claims for his company, posted the following on her Facebook page:
“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 he is trying to sue us.”
Supposedly, the personal Facebook page is linked to her business email address and the quoted statement remained on her Facebook page for 76 days.
So, the plaintiff sued, alleging a violation of the ADA.
The ADA protects the confidentiality of certain employee medical records.
Under the ADA, when a company obtains employee medical information during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” it must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.”
So, it follows that posting worker’s compensation medical information on Facebook doesn’t fly.
(Although, the plaintiff probably stated it more artfully than that in his Complaint).
Posting medical information on Facebook may violate the ADA.
In moving to dismiss the plaintiff’s complaint, the company argued that the plaintiff publicized his medicals in a state-court complaint filed mere days before the Facebook post went up. Thus, his voluntary disclosure of the medical information would negate any claim under the ADA.
Acknowledging the potential merit of this argument, the court still denied the company’s motion to dismiss:
“Neither side has alleged or argued that Mr. Shoun voluntarily disclosed his medical information to Ms. Stewart or anyone else at Best Formed Plastics; instead, Mr. Shoun alleges that Ms. Stewart acquired information about his medical condition through an employment-related medical inquiry by the company and then wrongfully disclosed that information. Whether Ms. Stewart gained knowledge of Mr. Shoun’s medical condition solely within the context of his employment-related medical examination is a question of fact not appropriate for resolution in a motion to dismiss.”
The takeaway here is fairly simple, whether the employer eventually prevails on the ADA claim, learn from their [alleged] mistake. Counsel your supervisors and other decision-makers that employee medical information should remain private. Not only might publicizing this information violate the ADA, it could violate other laws too, most notably, HIPAA.
And, in general, remind all employees — not the just the supervisors — to think before they click.