Title I of the ADA allows an applicant or an employee with a disability to request reasonable accommodation when needed to do their job. This is one of the treasures of the ADA! An interactive process should take place between employee and employer. This process is to find an effective accommodation for the employee that is reasonable for the employer to provide. This can take some time to determine, and patience is needed by everyone involved. But the successful outcome makes the workplace run smoother for everyone.
Once an employee/applicant has disclosed a disability and the need for accommodation, that information must be kept confidential (i.e. private, secured, controlled, classified - yes, I used my thesaurus). This begins an extremely important stage in the employment relationship. The employer (whether a supervisor or HR or another representative of the employer) now has the legal responsibility to:
- Recognize the request;
- Act upon the request; and
- Maintain its privacy.
Benjamin Franklin was aware of the difficulty of keeping something confidential: "Three may keep a secret, if two of them are dead." The Oxford English Dictionary defines confidentiality as "Spoken or written in confidence, characterized by the communication of secrets or private matters, betokening private intimacy, or the confiding of private secrets, enjoying the confidence of another person, entrusted with secrets, charged with a secret task." That is no small task!
This private information can be easily breached, whether deliberately or not. But, under the ADA it is illegal to provide information to those who do not need to have this information. This includes curious co-workers who may ask questions, such as "Why does Pat get a special chair?"
So, how DO you keep medical/disability/accommodation information confidential; who has the right to know the information; and what can we say to curious co-workers when questioned? The Equal Employment Opportunity Commission (EEOC) provides guidance and helpful tips on these very questions:
Tips and Best Practices to Ensure Confidentiality
- Keep information in a medical file in a separate, locked cabinet, apart from the location of personnel files.
- Choose a specific person or persons to have access to medical files. Train personnel and supervisors on confidentiality requirements of the ADA and other confidentiality laws.
- Don’t discuss employee accommodations with other employees. Respond to inquiries of ‘different’ or ‘special’ treatment by emphasizing employer policy of assisting any employee who encounters difficulties in the workplace. The employer may also point out that many workplace issues encountered by employees are personal, and it is the employer's policy to respect employee privacy. An employee with a disability may voluntarily choose to disclose to coworkers.
- Provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees.
- Instead of tossing confidential information into the trash, shred or destroy the info.
- When working on confidential information at your workspace, keep the information out of sight in folders or by placing face down on your desk.
- When discussing confidential information on the telephone, be aware of who may be able to hear your conversation.
- When faxing or copying sensitive information, remain at the machine until the task is completed and retrieve the originals. Use a cover sheet with a confidentiality notice printed on it when faxing. Call ahead and alert the receiver so that they retrieve the info quickly.
Limited exceptions:
- Supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations;
- First aid and safety personnel may be told if the disability might need emergency treatment;
- Government officials investigating compliance with the ADA must be given relevant information on request;
- Employers may give information to state workers' compensation offices, state second injury funds or workers' compensation insurance carriers under state workers' compensation laws; and
- Employers may use the information for insurance purposes.
For some good examples, this EEOC 2005 report highlights the State of Utah in the Rocky Mountain Region for best practices by a state government!