Plaintiff, Susan Floyd, was hired in 2006 by Defendant, Sun Trust, as an attorney in their legal department. As part of their business operations, Sun Trust used the firm Aetna to handle their “leave management program,” which included ensuring compliance with the Family Medical Leave Act (“FMLA”).
In 2009, Sun Trust granted Floyd a medical leave due to her psychological health under Sun Trust’s FMLA policy. Floyd took a continuous leave of absence from mid-April to late June. In July 2009, Floyd filed a federal lawsuit against Sun Trust and a co-worker, which alleged sexual discrimination and retaliation.
On October 1, 2009, Sun Trust sought to access Floyd’s confidential medical information via interrogatories and requests for production of documents in order to defend against Floyd’s pending suit. Floyd, however, objected to these requests, citing her right to privacy, confidentiality, and privilege in the requested documents.
Two weeks after Floyd objected to these requests, Ms. Hammond, an attorney and employee for Sun Trust, made a second inquiry via e-mail to an Aetna employee requesting Floyd’s FMLA records. Hammond’s requested for Floyd’s medical information was made, without notifying Floyd, exclusively for the purposes of pursuing litigation.
In June 2010, Floyd dismissed the sexual discrimination and retaliation lawsuit against Sun Trust, and filed a separate action against Sun Trust and Hammond in August 2010. Floyd conceded that Aetna’s first request for Floyd’s FMLA file was proper under the Americans with Disabilities Act (“ADA”). Floyd argued, however, that Hammond’s second request of Floyd’s FMLA file was an improper medical inquiry because an employer cannot make inquiries into whether an employee has a disability, or make inquiries “that [are] likely to elicit information about a disability” unless such an inquiry is shown to be job-related and consistent with business necessity.
An employer cannot make inquiries into whether an employee has a disability or “as to the nature or severity of the disability, unless … job-related and consistent with business necessity.”
The Equal Employment Opportunity Commission (“EEOC”) defines “a disability-related inquiry as “a question (or series of questions) that is likely to elicit information about a disability.” Floyd argued that Hammond’s request from Aetna constituted an improper, separate inquiry from a “co-worker.” The District Court disagreed and found that Hammond’s request for the FMLA was not a separate inquiry under the ADA.
Employers must ensure medical information and the work history of an employee is maintained in a confidential file. There are three exceptions to this rule, which apply to: (i) “supervisors and managers … regarding restrictions on the work or duties of the employee and the necessary accommodations”; (ii) safety and first aid personnel if an employee requires emergency treatment; and (iii) “government officials investigating compliance ….”
The ADA’s confidentiality requirement permits employers to make inquiries or require medical examinations necessary to the reasonable accommodation process. With respect to confidentiality, the primary question before the Court was whether the FMLA file was kept as a “confidential medical record” when Hammond received it and then forwarded it to outside counsel. In resolving this question the Court adopted the Second Circuit’s reasoning that the proper concern with regard to confidentiality is “ensuring that the information disclosed pursuant to an employer’s medical inquiry spreads no farther than necessary to satisfy the legitimate needs of both employer and employee.”
In determining whether the documents were kept as confidential medical records, the Court first asked whether Sun Trust had a legitimate purpose in obtaining Floyd’s FMLA. The Court found that “preserving and obtaining documents for the purpose of defending oneself in ongoing litigation is a legitimate purpose.” After determining that Sun Trust had a legitimate purpose, the Court found that Sun Trust limited the disclosure of these documents to the in-house counsel and outside counsel, which was no further than necessary.
Finally, in reaching its ultimate holding, the Court adopted the U.S. District Court of Kansas’ holding that the ADA could not work as a privilege within the meaning of the Federal Rules of Civil Procedure to limit disclosure. That Court noted that “Congress never intended for a defendant charged with violating the ADA to use the ADA’s confidentiality provisions to impede a plaintiff’s ability to discover facts that might help the employee establish his or her claim.” In the present case, the Court extended this reasoning, by stating that a defendant should also be able to obtain the plaintiff’s FMLA file when it has been sued so long as the disclosure extends no further than is necessary.
For these reasons, the Court held that Floyd’s FMLA file was retained as a confidential medical record.
Rule 26 of the FRCP permits parties to obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense—including the existence description, nature, custody, condition or location of any documents or other tangible thing and the identity of persons who know of any discoverable matter. While the Court noted that no other court had determined whether the discovery rules found in Rule 26 of the FRCP meet the definition of a “Federal law or regulation,” there is a strong federal policy of broad discovery under Rule 26.
The Court also noted that case law has settled “when a litigant alleges matters that put her medical status at issue, she waives her right to object to the discovery of medical records.” For these reasons, the Court found that even if Sun Trust violated the medical inquiry provision provided in the ADA, their conduct was necessitated by Rule 26.
The District Court held that Hammond’s request for Floyd’s FMLA file, which included medical information, was not an improper medical inquiry under the ADA because the medical information was treated with confidentiality in compliance with the ADA. Furthermore, the obtained medical information was discoverable regardless of ADA confidentiality provisions under FRCP 26, especially since Floyd alleged a matter that put her medical status at issue. Thus, the District Court found in favor of the defendant, Sun Trust.
This case presented an issue of first impression before the Northern District Court of Georgia: whether an in-house counsel’s request for an employee’s FMLA file for the purpose of pending litigation, which is then forwarded to outside counsel, but remains confidential, violates the ADA’s provision on medical inquiries.
The Court found that a company’s disability-related inquiry was proper when: (1) a company’s attorney requested and obtained FMLA files; (2) the company had a legitimate purpose for requesting and obtaining these files (anticipated litigation); (3) the files were provided to outside counsel; and (4) the files were spread no further than necessary (i.e. remained confidential).
It is important to note the context in which this case arose: a medical inquiry was made by a company’s attorneys who had a reasonable belief of future litigation. Courts tend to give special weight and consideration to attorneys’ professional code of conduct, which attaches to attorneys in their representation of clients. Most notably: confidentiality.