The Americans with Disabilities Act (ADA) provides many important protections to employees. One of these is forbidding employers from requiring employees to undergo medical examinations or answer questions that are designed to determine if they have a disability.
Weis, a local grocery store chain, was recently sued for allegedly violating this provision of the ADA. According to a lawsuit filed by the Equal Opportunity Employment Commission (EEOC), a store employee was subjected to sexual harassment by a supervisor.
When the employee reported the harassment, the lawsuit alleges that the store did not take reasonable corrective action and instead required the employee to participate in the store’s employee assistance program (EAP).
Participating in the required EAP program would have required the employee to disclose information that was protected under the Health Insurance Portability and Accountability Act (HIPAA). The purpose of the mandatory referral to the EAP was to determine if the employee should be placed on disability leave.
The ADA violation
An EEOC representative says the EAP referral violated the ADA’s requirement regarding revealing private information about disabilities. The only exceptions to this rule are when the examinations or questions are job-related and consistent with business necessity.
The employee in this case was ultimately terminated when they refused to participate in the mandatory EAP program. This is potentially an illegal form of retaliation.
Additionally, employers have a legal duty to address complaints of sexual harassment and take appropriate action. Ignoring the complaints or retaliating against the employee are illegal.
Retaliation
Retaliation comes in various forms, including demotion, termination or giving an employee additional or undesirable job duties. Negative treatment that creates a hostile work environment is another form of retaliation.
As an employer, you can avoid situations such as this one by making sure your human resources professionals are given initial and ongoing HIPAA privacy training. They should also be educated on their legal duties for responding to sexual harassment complaints from employees.