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On July 21, 2014, President Obama issued an executive order amending Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes for federal contractors and subcontractors. Under the amended Executive Order 11246, federal contractors and subcontractors are required to select and employ individuals without regard to sexual orientation and

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.

Factual background

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.

The decision

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.

Continue Reading Federal court finds employer may be liable under the ADA for employee’s snarky Facebook comments about another employee’s medical condition

Employers who have been concerned about the EEOC’s stance on inflexible maximum leave policies can find some comfort in the Tenth Circuit’s decision in Hwang v. Kansas State University, wherein the court held a six month leave of absence was a reasonable accommodation, and the University’s denial of additional time was not a violation of the Rehabilitation Act.

Facts

Grace Hwang was employed as a professor at Kansas State University from 1994 until February 2012, on a year-to-year contract. Ms. Hwang served as an assistant professor in KSU’s School of Leadership Studies. In 2005, Hwang was diagnosed with breast cancer. She underwent surgery, chemotherapy and radiation and missed about three weeks of work. Hwang returned to her full load of classes for four years until she was diagnosed with leukemia. Hwang was encouraged to participate in an aggressive course of chemotherapy and to have a bone marrow transplant, which would keep her away from work for about six months. At that time, Hwang had only two months of paid leave time, so she applied for and received additional paid leave through KSU’s Shared Leave Program.

Hwang was released from the inpatient care facility in November 2009. However, at the time of her release, KSU was dealing with a severe outbreak of the H1N1 virus. Hwang’s physicians advised she stay away from campus due to her compromised immune system. Hwang contacted Dr. Mary Tolar, her supervisor, to let her know that she would need to take additional leave through the spring semester. Hwang stated, however, that she planned to teach her online course during the summer.

Continue Reading University gets it right when it says, “enough is enough”: Tenth Circuit upholds inflexible leave policy under Rehabilitation Act

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