The Americans with Disabilities Act prohibits employers from disclosing certain information about employees' medical condition or status. In the statute, that prohibition applies to information learned as the result of a medical inquiry. Last month, the Seventh Circuit Court of Appeals rejected the EEOC's argument that this requirement also applies to any medical information learned through inquiries about an employee's ability to perform job-related functions.

In EEOC v. Thrivent Financial for Lutherans, the plaintiff missed work without explanation. His employer called to inquire about his status. Without prompting, the employee responded that he was suffering from a major migraine episode. After the employee quit, he claimed that his former employer was informing prospective employers that he suffered from migraines. The EEOC brought suit on his behalf, alleging violation of the ADA's prohibition on disclosure of employee medical information.

Thrivent obtained summary judgment based on its contention that the statutory prohibition must be strictly read to only apply to information learned from "medical examinations and inquiries." In this case, the employer only asked why the employee was missing work, not whether he was suffering from any medical condition. The EEOC appealed, claiming that the prohibition must be read broadly to apply to any medical information learned as a result of an inquiry about the employee's ability to perform job-related functions.

The Seventh Circuit rejected the EEOC's argument, concluding that it was bound by the plain language of the statute. The prohibition on disclosure only applies to medical inquiries, and not to more general questions about the employee's work status. Employees who voluntarily disclose medical information do not gain ADA protection over later disclosure.

Employers should be cautious about overreacting to this decision. The line between a medical and a more general inquiry can be blurred. Employers often make follow-up medical inquiries as a result of unprompted employee disclosures that would still be protected information.

Employer policies that prohibit disclosure of any employee medical information can avoid confusion and also avoid other claims relating to disclosure, such as state law breach of privacy actions. However, employers should make certain that initial inquiries about employee attendance or performance problems are not premised on an assumption that they are medically related. Absent existing knowledge of such a condition, the employer should let the employee be the one to attribute work problems to a medical condition.