A peek at the ADA’s ‘unlawful disclosure’ and how it ties in with the FMLA
Many employers might not know that employees can file disability discrimination claims based only on their employer’s unlawful disclosure of their medical information. “Unlawful disclosure” means an employer shares an employee’s medical information without their consent or as otherwise prohibited.
The federal Americans with Disabilities Act (ADA) governs these kinds of claims since it:
- Restricts when employers may ask employees medical questions (make medical inquiries),
- Restricts when employers can require medical exams, and
- Requires employers to keep employee (and applicant) medical information confidential.
One employer learned this the hard way.
The story
Aileen began having breathing issues and believed the building she worked in was the cause. She asked to change her schedule so she would spend less time in the building. She also asked about relocating her workstation. The employer granted both requests.
A couple of months later, Aileen was diagnosed with breast cancer. She asked for leave under the federal Family and Medical Leave Act (FMLA). The employer granted the leave after she gave HR a certification from her oncologist.
A few months after that, Casey, a union steward, sent Aileen an email mentioning that he had heard about her cancer from Bonnie, an HR Manager. He said he thought her cancer caused her breathing issues, not the building.
Aileen was surprised that Casey knew about her cancer, since the only company people she told were a manager and a work friend. Bonnie, however, had information from Aileen’s FMLA certification.
After her cancer treatment, Aileen returned to work, but worked remotely three days a week. Her breathing condition, however, continued to decline, and she asked to work full-time remotely. The employer agreed.
Despite this work accommodation, Aileen sued her employer for:
- Disability discrimination,
- Failure to accommodate,
- Unlawful disclosure, and
- Retaliation.
Only the unlawful disclosure claim survived the lawsuit.
The courtroom scene
In court, the employer argued that it didn’t make a medical inquiry because the FMLA certification form “is not an inquiry that is intended to reveal or necessitates revealing a disability [as] an employee could be eligible for FMLA leave based on a serious medical condition that is not considered a disability….”
The employer also claimed that even if it made such an inquiry, Aileen failed to show that her medical condition was confidential at the time of the disclosure.
Aileen, however, gave enough evidence that Bonnie was the source of the allegedly unlawful disclosure to Casey and that Bonnie got the information from the FMLA certification.
The court sided with Aileen and said that asking for an FMLA certification is making a medical inquiry, and the ADA restricts what employers may do with that information. The FMLA regulations also call for medical confidentiality.
Employers can’t avoid that restriction simply because their demand for information is embedded in the mechanics of FMLA leave approval. Employers that condition entitlement to FMLA leave on employees disclosing medical information on a certification still make ADA medical inquiries, triggering their confidentiality requirements.
Mullin v. Secretary, U.S. Department of Veterans Affairs, 11th Circuit Court of Appeals, No. 22-12354, August 8, 2025.
Key to remember: Employers need to keep employee and applicant medical information confidential or face claims of unlawful disclosure.
