In Shoun v. Best Formed Plastics, Inc., a federal judge held that an employer may be liable for an employee’s snarky Facebook comments about another employee’s medical condition. This case serves as a good reminder to employers and employees alike of the importance of preserving the confidentiality of employee medical information.
George Shoun, an employee at Best Formed Plastics, suffered a workplace injury and took a few weeks off work to recover. Jane Stewart, another employee, processed his worker’s compensation claim and monitored his medical treatment for the company. In doing so, she learned the nature and extent of his injury.
For whatever reason, Stewart took to her personal Facebook page and posted: “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.” The post stayed up for 76 days and, according to Shoun, was viewable by surrounding business communities.
Shoun sued the company claiming it, through its employee, violated the ADA by “deliberate[ly] disclos[ing] [his] medical condition to another person.” He also claimed Stewart “acted with the intent to expose him to public scorn and ridicule and to blacklist him among prospective employers within her broad network” that resulted in a loss of employment, impaired his earning capacity, and caused him emotional distress and mental pain and suffering.
The employer moved to throw out the case with a motion to dismiss and made two arguments: (1) it could not be liable for violating the Americans with Disabilities Act’s (ADA) confidentiality provisions because Shoun voluntarily disclosed his medical condition to the public before Stewart’s Facebook post; and, (2) Shoun failed to allege a tangible injury that resulted from the alleged ADA violations.
Medical information is confidential, and here is why: Section 102 of the ADA provides that any information relating to a medical condition of an employee obtained by an employer during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.”
To state a viable claim under the ADA’s confidentiality provisions, a plaintiff has to allege (1) his employer obtained the medical information through employment-related medical examinations and inquiries; (2) the information was disclosed by the employer and not treated confidentially; and (3) the employee suffered a tangible injury as a result of the disclosure.
On the voluntary disclosure issue, it turns out Shoun did disclose his medical condition in a complaint he filed in a state court lawsuit before Stewart’s Facebook disclosure. The employer alleged it could not be liable because Stewart’s disclosure was just her reciting facts that Shoun had already voluntarily and publicly disclosed.
Neither side alleged Shoun voluntarily disclosed the information to Stewart or the employer, so the employer could not rely on the fact that the information had been publicly disclosed to get out of the suit. The court did not take up the issue of whether Stewart obtained the information from a public source. The issue was whether Shoun pleaded that Stewart obtained the information through an employment-related medical inquiry and then wrongfully disclosed it. According to the court, Shoun had.
On the tangible injury issue, the court noted that Shoun alleged “prospective employers refused to hire him,” and that he suffered emotional injury, both of which are recognized as tangible injuries under the ADA.
Shoun’s allegations were enough to defeat the employer’s motion to dismiss and this case moves forward.
This case underscores how important it is for employers to train employees – all employees – about what is proper to disclose on social media and what is not. Medical information is confidential, and employees who handle worker’s compensation claims, medical leave requests, FMLA claims, etc., are placed in a very important position of trust. Employers must train these employees of their obligations under the ADA and other laws to maintain the confidentiality of medical and other information. Employees must be trained to understand that while they may only be at work for 40 hours a week, their duty to maintain confidential information – all types of confidential information like trade secrets – goes far beyond the punch-in clock. It is a 24/7 obligation, and one that must be taken seriously.