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Employers don’t have unlimited right to dig for psychiatric records

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in Employment Law,Firing,FMLA Guidelines,Human Resources

When an employee sues you and you know or suspect he may be mentally unstable, it’s tempting to dig for mental health records—perhaps to question his credibility. But if the employee isn’t claiming mental damages, don’t count on even accessing those records.

A recent Illinois district court case addressed the scope of an employer’s right to examine a former employee’s mental health records.  David Kronenberg sued his former employer, the international law firm Baker & McKenzie, for failing to provide a reasonable accommodation under the ADA. The case is Kronenberg v. Baker & McKenzie LLP (No. 09-04137, N.D. Ill., 2010).

The court ruled that the employer could not require Kronenberg to produce his mental health records for purposes of discovery in an ADA lawsuit because he claimed damages only for physical health issues.

Firing instead of accommodation

Kronenberg suffered from a degenerative spinal disk disease since at least 1998. He began working at the law firm in 2004. In 2006, Kronenberg’s back condition worsened, which made it difficult for him to work for extended periods at a computer.

The firm granted FMLA leave for Kronenberg. While he was on leave, he asked the firm to make certain accommodations for his back condition: He wanted to switch from a full-time schedule to part time, and he asked for ergonomic office furniture.

Not only did the firm turn down Kronenberg’s accommodation requests, it told him he was being fired.

Kronenberg sued under the ADA, alleging that the firm failed to provide reasonable accommodation and retaliated against him in violation of the ADA.

During pretrial discovery, the firm asked Kronenberg for the names of all his physical and mental health care providers from 2000 to the present, along with any medical information or documents relating to treatment by these providers.

But Kronenberg only provided information concerning physicians who had treated his back disorder since 1998. In addition, he refused to execute general medical releases and limited his disclosure to medical records related to treating his spinal condition.

Turn over all records

The firm filed a motion to compel, arguing that the information it sought was relevant and necessary to determine whether Kronenberg could perform the essential functions of his job. It asserted that Kronenberg waived his psychotherapist-patient privilege by placing his mental health at issue when he sought damages for pain and suffering, in addition to reinstatement and back pay.

Kronenberg argued that he had not waived the psychotherapist-patient privilege because his mental health was not at issue.

The U.S. Supreme Court recognized the psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1 (1996). The psychotherapist-patient privilege prevents disclosure of confidential communications between a licensed psychotherapist and his or her patients in the course of diagnosis or treatment. It can be waived if a party places his or her psychological state at issue. For example, a plaintiff may waive the psychotherapist-patient privilege if he affirmatively claims a “disability” involving mental health or seeks damages for emotional distress.

The decision

The court rejected the firm’s argument that Kronenberg must turn over his mental health records, ruling that he never waived his psychotherapist-patient privilege.

The court reasoned that forcing an ADA plaintiff to reveal his mental health information simply by filing a lawsuit, even though he never placed his mental health at issue, would stretch the waiver beyond all bounds.

The court emphasized that Kronenberg never placed his mental health status at issue and was not relying upon his mental health records to establish that he is a “qualified individual” under the ADA. Instead, he alleged only a physical disability as the basis for his ADA claim. Plus, Kronenberg never claimed emotional distress damages and disavowed that mental health or emotional issues would play a role in presenting his case or in his request for damages.

Accordingly, the court held that there was no basis to conclude Kronenberg had waived his psychotherapist-patient privilege. It denied Baker & McKenzie’s motion to compel.

This decision serves as a reminder to employers that they do not have an unlimited right to obtain an employee’s medical information in the employment context and in litigation.

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