Confidentiality Is Key When Employees Are on FMLA or ADA Leave

​Whether an employee is on continuous or intermittent leave, the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) restrict sharing information about the employee in virtually the same way and emphasize keeping medical information confidential. HR can pass along only some information to the employee's manager.

"Restrictions may be shared with those who need to know," said Joan Casciari, an attorney with Seyfarth in Chicago. As for the details of a medical condition, "the FMLA and ADA regulations contain similar language with regard to the records relating to FMLA leave or ADA accommodations."

The FMLA regulations provide that records shall be maintained in conformance with the ADA confidentiality requirements, except that:

• Supervisors and managers may be informed about necessary restrictions on an employee's work or duties and needed accommodations.
• First-aid and safety staff may be told, when appropriate, if the employee's physical or mental condition might require emergency medical treatment.
• Government officials investigating compliance with the FMLA or other pertinent law shall be provided relevant information upon request.

"The ADA regulations are nearly identical," Casciari said.

Continuous Leave

When a worker is on continuous leave, the supervisor can be told that the employee is on leave and expected return dates, Casciari said.

"[Work] restrictions would not generally be shared or even known until the employee is released or about to be released," she added. "At that time, the health care provider would identify any restrictions, and these would be reviewed."

The employer—and not the health care provider—should determine whether the employee can perform the essential job functions within the confines of any work restrictions, said Scott Macdonald, Esq., SHRM-SCP, and managing director of Macdonald & Associates in Middletown, Conn.

Intermittent Leave

For employees on intermittent leave, the supervisor needs to know the frequency and duration of the leave: how often is the employee expected to be absent and for how long each time. Sometimes that intermittent leave will happen at regular intervals, and sometimes not.

Employees can work a reduced work schedule typically, which is an agreed-upon part-time schedule—fewer hours per day or days per week—or they could need unplanned time off, which is often the case for intermittent leave.

"Remember that an FMLA-eligible employee unable to perform any one essential function due to a serious health condition is entitled to FMLA leave and does not have to accept light duty," although the employee could lose workers' compensation or short-term disability benefits as a result, Casciari said.

Work Restrictions vs. Underlying Medical Condition

"Most of the time, the issue of restrictions is an ADA issue, not an FMLA issue," she said. Someone who has exhausted their FMLA leave or isn't eligible for it might be entitled to ADA leave or some other ADA reasonable accommodation.

Recognize the difference between sharing information on the restrictions—for example, no lifting over 25 pounds for the next six weeks; an employee needs a 10-minute break every two hours for the next specific number of months; or someone needs assignments to be in writing indefinitely—and the underlying medical condition causing the restrictions, such as cervical spine issues, anxiety disorder or attention deficit hyperactivity disorder.

"A supervisor is entitled to know about employee work restrictions," said Charles Thompson, an attorney with Ogletree Deakins in San Francisco. "Companies may share medical information underlying the reason for leave or other ADA accommodation only based on business need or business necessity."

An employer may have a business need to share information with the employee's supervisor about the employee's intermittent leave that includes reporting to work a few hours late a few times per month, he said. That way, the supervisor can better manage the employee's work and that of the entire department when those instances arise, Thompson said. The same supervisor likely would not need the specific information about the employee's exact medical condition, unless the supervisor needs to be aware of it to ensure the safety of the employee and others.

Thompson added that an employer would have a business need to share information with a supervisor about which employees are vaccinated against COVID-19 in that supervisor's department if the supervisor is responsible for enforcing a company policy that requires masking for unvaccinated employees. The employer would not have a business need to share information about which employees are vaccinated if the company doesn't have a safety policy that requires unvaccinated employees to be masked, he said.

Likewise, "restrictions that do not prevent the employee from performing the essential functions of the job should not be shared," Casciari said. For example, employers should not share a 25-pound lifting restriction for a sedentary job or the inability to drive for a position that does not require driving.

If a supervisor is told about a worker's restrictions, the communication should be documented in writing, such as an e-mail, she recommended.

Any approved accommodations also should be documented and shared with the supervisor, said Abigail O'Connell, senior counsel with Sun Life Financial in Wellesley Hills, Mass.

Supervisor Training

When a supervisor asks about the details of an employee's condition, HR should remind the supervisor that this information is confidential and only work-related restrictions will be shared, Casciari said.

"Sharing employee medical information with the employee's supervisor results in risk to the employer," O'Connell noted. "An employee whose information has been shared may allege that their supervisor engaged in disability discrimination or that the supervisor interfered with their leave rights or retaliated against them for taking leave."

Casciari added that "supervisors and managers should be trained not to repeat details on medical conditions just because the employee is sharing details." She noted "considerable confusion" over medical information that might not be protected by the Health Insurance Portability and Accountability Act but still is confidential.

Disclosure of the existence of an employee's disability that is not readily apparent would be an ADA violation, Macdonald said.