Warn managers: Never disclose ex-employees’ medical data

Issue: Former employees can sue if your managers blab about employees' medical conditions to prospective employers.

Risk: Ex-employees can file Americans with Disabilities Act (ADA) lawsuits even if they're not disabled.

Action: Never disclose medical info about ex-employees. You may know that, but make sure your organization's managers do, too.

When checking applicants' references, some employers like to do an "end run" around the HR department. They'll call the applicant's former supervisor directly to find out the dirt on the person.

That's why it's important that your supervisors know how to respond to such requests. If you do let managers talk, hammer home this point to them: Never disclose medical information about employees or former employees. Disclosing such data opens up your organization to a lawsuit under the "confidentiality provision" of the Americans with Disabilities Act (ADA).

Key point: People don't need to be disabled to file such a lawsuit. Nor do they need to be current employees.

Recent case: When Nora Heston couldn't land several jobs, she suspected her previous employer was giving her negative references. She hired an investigator, who posed as an employer and called her former supervisor. He gave a generally positive reference, but also made a negative comment about Heston's bad back, for which she had gone on disability leave.

Heston sued, claiming the supervisor's comment was an unauthorized disclosure of medical information. The company countered, saying Heston couldn't win because she wasn't disabled and wasn't an employee at the time of the suit. But the court sided with Heston on both accounts.

Reason: It doesn't matter that she wasn't technically "disabled." The ADA's confidentiality provision makes it illegal to disclose medical data about any employee, even if he or she isn't disabled. Plus, the law makes clear that former employees can sue after they've left a company. (Heston v. Underwriters Laboratories Inc., No. 1:02CV00417, M.D.N.C., 2004)