Does the FMLA give rise to a private cause of action against an employer for disclosure of medical information?

Circle privacy

The answer to this question has yet to be definitively answered. A federal court recently entertained the question, but refrained from making a detailed analysis of the issue. Ekugwum v. City of Jackson, Mississippi, 2010 WL 1490247 (S.D.Miss. 2010). The court did, however, allow the claim to go forward on summary judgment since the defendant had failed to argue that no such cause of action exists.
In that recent case, an employee alleged that the dissemination her medical information violated the FMLA. The employee had been hospitalization for treatment of a mental condition. After being hospitalized, the employee approached her supervisor and informed him that her mental condition would require her to take leave from work. The employer, as with most employers, required medical information in order to approve her leave as FMLA qualifying leave. The employee provided her supervisor with required medical information in a sealed envelope. She later found out that her medical information had been divulged to others in the office. Her coworkers informed her that they were aware of her mental condition. The employer had divulged the confidential information that she had provided in a sealed envelope along with her FMLA application.

The court noted that the FMLA creates no privacy interests. However, it stated that the FMLA regulations give rise to a potential private right of action for employees whose medical have been disclosed by their employer. Specifically, the federal regulations for the FMLA addressing privacy require that the medical documents and records of an employee or employee’s family member “shall be maintained as confidential medical records in separate files/records from the usual personnel files.” See 29 C.F.R. §825.500(g). In its brief analysis, the court, which declined to give an opinion on whether such a cause of action actually exists, cited other courts who have touched on the issue.

The District of Maryland briefly addressed this issue in a footnote in Walker v. Gambrell, 647 F.Supp.2d 529, 539 n. 5 (D.Md. 2009), stating that it is not settled whether the FMLA regulation provides a private cause of action for disclosure of medical information. The Northern District of Georgia briefly addressed the issue stating that there is no cause of action based on the FMLA regulation, and therefore, that employees cannot sue their employers under the FMLA for divulging information. See Rich v. Delta Air Lines, Inc., 921 F.Supp. 767, 773 (N.D. Ga. 1996).

The issue was discussed in more detail by the District of Minnesota in Johnson v. Moundsvista, Inc., 2002 WL 2007833 (D.Minn. 2002) (not reported). There, the court acknowledged that there may be a cause of action under the FMLA based on disclosure of information, but stated that if one does exist, an individual bringing such claim must show that she suffered a “tangible injury” from such disclosure. In other words, the court held that it is not enough that the disclosure was made. The employee must have suffered some concrete or material loss or injury as a result of that disclosure. Id.

As these cases show, the question of whether an employee has a private cause of action under the FMLA remains unanswered. However, the fact that the Southern District of Mississippi recently allowed the claim to go forward passed the summary judgment stage shows that courts are open to considering this cause of action as a rightful claim.

An employer should not disclose an employee’s medical information to anyone who is not directly involved in approving and/or maintaining his or her medical leave. If your employer has disclosed confidential medical information that you provided in connection with your FMLA leave, you should talk to an attorney about whether you have a cause of action against your employer. It is worth exploring whether you may have a cause of action against your employer under the FMLA, the ADA, or some other state law. 


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