March 19, 2012
by Krishna Balasubramani

Employer may have violated ADA and state law by using post-offer medical information in discipline and WC

Krishna BalasubramaniEmployee sued employer alleging workers’ compensation retaliation.  Employee alleged the employer misused her post-offer medical questionnaire to terminate her employment and reduce workers’ compensation benefits.  The claim was brought under ORS 659A.133.  However, the court relied on provisions of the ADA, including 42 USC Sec 12112(d)(3).  The court cited precedent from other states.  As such this case presents concerns for all employers.

Claimant completed a post-offer medical questionnaire and did not reveal a childhood history of scoliosis or early signs of carpal tunnel syndrome.  She filed a workers’ compensation claim for carpal tunnel and this was accepted.  However, her employer terminated her for falsifying her post-offer medical questionnaire.  Her workers’ compensation benefits were reduced as a result of the termination.

Oregon law regarding post-offer medical information provides “[s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.”  The court also noted the ADA limits the use of this information and use “for disciplinary purposes is not consistent with that purpose.”

The allegations included that the post-offer medical questionnaire was electronically stored in a manner that gave access to the workers’ compensation manager.  The court found plaintiff had stated a viable claim on the basis that the employer did not maintain its confidential questionnaire separate from other non-confidential information.

The court also found a viable claim that the employer violated the ADA (and Oregon statute) by utilizing confidential questionnaires for employee discipline. Additionally, the court also noted that the use of the questionnaire in the workers’ compensation claim may not have been a permissible purpose.

This is an important reminder that the employee’s confidential medical file should be kept in confidence and careful consideration should be given before material in the file is used for disciplinary purposes or for administering a workers’ compensation claim.

Tamburino v. Old Dominion Freight Lines, Inc., February 2012 US District Court Decision by Judge Stewart