Employers have a right to defend themselves if an employee sues them for discriminating in a way that inflicts emotional distress. One defense: That the employee’s emotional distress may have been caused by something other than work—for example, an underlying medical or psychological problem.
To investigate that possibility, employers need access to medical records. Now a court has agreed that employers are entitled to see records dating back two years from the time of the alleged discrimination that the employee says triggered the emotional distress.
Recent case: The EEOC sued on behalf of a Smith Brothers Truck Garage employee, alleging the company violated the ADA when it discharged him. The firing, according to the EEOC, caused the employee emotional distress and anxiety.
Smith Brothers sought medical records so it could look for another possible cause. The EEOC opposed turning over the records. However, the federal judge handling the case said the company should have the records it wanted—but only going back two years from the date of the termination. (EEOC v. Smith Brothers Truck Garage, No. 7:09-CV-00150, ED NC, 2010)
Final note: Be sure to tell your attorney about any emotional or psychological problems you suspect the employee may have had before an adverse employment action occurred. Emotional distress can be caused by divorce, illness, a death in the family or other challenges.