Employee Privacy vs. the Release of Medical Information

Privacy rights have been with us forover a century. They date back to a highly influential 1890 law review article(“The Right to Privacy,” 4 Harvard Law Review 193) by Professors Brandeisand Warren. They vary widely from state to state. Some states (such as New York)do not recognize any common law privacy rights. Other states (such asMassachusetts) have either enshrined the right to privacy in special legislation(Mass Gen. Law Ch. 214,1b) or in the state’s constitution. Moreover, nearlyeveryone believes there is an innate “right” of privacy regardless of whattheir state’s laws say. Employers must tread carefully when their employeesassert privacy rights because the jury that will decide their employment casewill likely be privacy devotees.

    The jury that heard Linda Fletcher’sprivacy case clearly believed in privacy rights. They awarded $5,000compensatory and $50,000 punitive damages against her former employer, PriceChopper Foods. Fletcher worked as a deli cook at a Price Chopper grocery storein Trumann, Arkansas. Her manager, Marlene Sawyer, took impermissible legal andinvestigatory short-cuts in an effort to document the reasons for Fletcher’stermination. Despite these employer mistakes and the adverse jury verdict, PriceChopper won this case before the Eighth Circuit, Fletcher v. Price ChopperFoods of Trumann, Inc., 2000 U.S. App. LEXIS 19072 (8th Cir., August 9,2000). Privacy rights may be ubiquitous but they are not unassailable.

    Perceptive readers should spot the twomistakes over-zealous Manager Sawyer made. Fletcher was diagnosed with diabetestwo years after she began work as a deli cook at this grocery store. Fifteenmonths later, her left leg had to be amputated below the knee. After sevenmonths’ rehabilitation and a prosthetic limb, Fletcher returned to work as adeli cook. Her medical troubles continued. She then developed a diabetic ulcerin her right foot which had to be treated and dressed at a local hospital threetimes a week. While at work, she spilled hot gravy on that same right foot. Acoworker helped her remove her sock and applied burn cream to the exposedportion of her foot.

    Fletcher filled out a Arkansasworkers’ compensation form for this hot gravy incident as Price Chopper policyrequired. That form contained an authorization that permitted the release ofFletcher’s medical information. However, Fletcher never followed through andfiled a workers’ compensation claim for this incident. A few weeks later,Fletcher learned her right foot had developed a staph infection. She immediatelytold this to two coworkers who promptly told Manager Sawyer. Arkansas healthregulations prohibited anyone with a communicable disease (such as staph) fromworking in food preparation. Sawyer then terminated Fletcher.

    The employer mistakes were about tohappen. Fletcher filed for unemployment, claiming she did not have a staphinfection at the time Price Chopper fired her. This claim upset Sawyer whodecided to become an amateur detective rather than relying on what Fletcher hadtold her two coworkers. Sawyer called Fletcher’s doctor and spoke to NurseFlemon. Flemon said she could not release any information without a medicalauthorization form. Sawyer replied she had one because all Price Chopperemployees sign medical information waivers when they begin work. Sawyer thenfaxed Flemon a copy of Fletcher’s unsubmitted workers’ compensation formwith its medical authorization. Sawyer also told Flemon Fletcher had removed thebandage from her foot during work. That information upset Flemon because thedoctor had warned Fletcher not to expose her infection to the air. Based onSawyer’s two statements, the doctor wrote Sawyer informing her Fletcher wasindeed infected with the staph virus. His letter also reiterated that she shouldnot remove the bandage.

    The good news was that Price Chopperwon the unemployment case hands down. The bad news was that Fletcher immediatelysued the company under the Americans with Disabilities Act. Ten months later,Fletcher amended her complaint to add a state law invasion of privacy claim.Both claims went to the jury. Price Chopper obtained dismissal of the ADA claimbut, as noted, was assessed $55,000 total damages on the privacy claim. Thedistrict court struck out the jury’s $50,000 punitive damages award. That leftonly the $5,000 compensatory damages for what the jury found was an unlawfulinvasion of Fletcher’s privacy. That, in turn, was struck down by the EighthCircuit because privacy rights are particularly fragile.

    Arkansas, like the majority of thestates, follows Restatement (Second) Torts, which lists four distinct tortsunder the general heading “invasion of privacy.” Fletcher might have chosenthe third privacy category (“unreasonable publicity given to a person’sprivate life”) but did not. Presumably, the disclosures by Sawyer to the nursewere not “public” enough and were also information the nurse already knew.Fletcher and her attorney chose to rely on the first privacy category,unreasonable intrusion upon the seclusion of another. There was a clearintrusion. Sawyer used a workers’ compensation form’s medical authorizationto gain information from Fletcher’s doctor about her staph infection. This wasemployer mistake number one. Fletcher applied only for unemployment. She did notfile for workers’ compensation. Sawyer’s representation to the nurse thatthe unsubmitted workers’ compensation medical authorization form was “goodfor all purposes” was false.

    The second mistake was that Sawyer toldthe nurse Fletcher had removed the bandage from her foot ulcer in violation ofthe doctor’s orders. The coworker’s report to Sawyer said only thatFletcher’s sock had been removed and burn cream had been applied tothe exposed portion of Fletcher’s right foot. The jury very likely foundSawyer had grossly misrepresented to Nurse Flemon what Fletcher had done at workespecially after hearing Fletcher herself testify without contradiction she didnot remove her bandage.

    The intrusion on someone’s seclusionmust also be unreasonable. At this point, the Eighth Circuit judges partedcompany. Two panel members found Sawyer had not acted unreasonably because thedocumentation of Fletcher’s staph infection that Sawyer zealously sought“could otherwise have been obtained by other means.” Price Chopper couldhave easily obtained a subpoena for Fletcher’s doctor’s testimony during theunemployment benefits application process that Sawyer was so determined to win.Yet because an alternative legal means to obtain the exact same information wasavailable even though never used, Sawyer’s conduct in cutting a fewcorners was not “highly offensive” as this invasion of privacy categoryrequires.

    To support this conclusion, themajority cited an interesting Kansas case, Werner v. Kliewer, 238 Kan.289 (1985). There, a husband embroiled in a divorce and child custody battleurged his wife’s physician to write to the trial court disclosing his wife’sseveral suicide attempts. The physician wrote that letter and the wife promptlysued claiming invasion of privacy. The Kansas Supreme Court granted summaryjudgment to the physician holding that nothing in the letter “was not alreadyknown” by the husband and his failure to follow “standard court anddiscovery procedures” was not highly offensive.

    The Eighth Circuit did not have to goto this extreme to excuse Sawyer’s “morally reproachable” conduct. Privacyis an expectation, not a right. It can be defeated in many ways. Here, Fletcherimmediately told two coworkers that her right foot had developed a staphinfection. The information Sawyer was zealously trying to document by impropermeans was no longer “private” information. All three panel members readilyagreed that Fletcher’s “revelation of private information to coworkerseliminated Fletcher’s expectation of privacy by making what was formerlyprivate a topic of office conversation.” Thus, long before Sawyer, acting asan amateur detective to defeat Fletcher’s minor unemployment claim, contactedFletcher’s doctor, “the proverbial cat had escaped from the bag. . . .”Fletcher no longer had any expectation of privacy after she told her two on-sitecoworkers who, not being restricted by Fletcher, immediately passed on the newsabout Fletcher’s staph infection to Sawyer, who was located in anotherArkansas town.

    Even at this point, the majority againdeparted from the concurring Judge. Fletcher’s staph infection obviouslyprecluded her from working as a deli cook under Arkansas and ADA rules. Thatinfection also had the potential to infect her coworkers. The majority thereforeheld, alternatively, that “an employer’s need to know trumps an employee’sright of privacy.” This was a further reason why Fletcher did not have areasonable expectation of privacy with respect to knowledge of her staphinfection.

    This case shows the vast differencesbetween employees’ (and jurors’) privacy expectations and legal realities.Privacy expectations can be defeated by employer policies and by theemployee’s own contrary actions. At the same time, employers need to ride hardon over-zealous managers such as Marlene Sawyer. A short-cut that wins a minorunemployment battle and yet opens up a protracted and costly ADA-privacy legalwar is not worth taking.

Reprinted with permission from Employment Law Alert, a publication of Nixon Peabody LLP. Copyright© 2000 Nixon Peabody LLP. Allrights reserved. The information contained in this article is intended toprovide useful information on the topic covered, but should not be construed aslegal advice or a legal opinion.