Is it a violation of the Right to Privacy Act if a former employer/boss/HR Rep volunteers info to a third party that I was on short term disability due to a injury, especially if the injury is not pertinent to any future jobs I may have? This has happened and I am concerned it has/will happen again and will jeopardize finding a new job.

Posted 08-26-2011

Ann Kiernan replies:

Releasing your medical information without your consent most probably violates your privacy rights under the law of your state, as well as your federal right under the Americans with Disabilities Act to have your employment-related medical records kept confidential.

It could even be considered a form of illegal retaliation against you because you were disabled and/or took FMLA leave, as a New York federal judge recently decided. Julie Male had taken FMLA leave while working at Tops Markets, and was later terminated. She applied for more than 100 jobs but did not get hired, and claimed that a Tops Markets manager said during a reference check by a prospective employer that she “was a good employee for the first couple of years,” but later “missed and was late to work a lot because of her personal and medical issues.” The court denied the employer’s motion to dismiss the case, holding:

While the statement that Plaintiff took absences due to her personal and medical issues may have been true, if Plaintiff can prove the Defendant made such a statement to a prospective employer in retaliation for the Plaintiff’s exercising her rights under the FMLA or the ADA, such a statement may violate the anti-retaliation provisions of the ADA, FMLA and

[New York state anti-discrimination law].

(Male v. Tops Mkts., LLC, 2011 U.S. Dist. LEXIS 63966, *10 (W.D.N.Y. June 13, 2011))

I suggest that you consult a local employment law attorney for more information about your rights and how to protect them. If you do not know such a lawyer, you may want to search your state’s listings at the National Employment Lawyers Association, or to contact your local bar association for a referral. Good luck.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.