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June/July
2005
 City’s
Failure to Maintain Employee Drug and Alcohol Test Results as Confidential
May Violate the ADA
Recently, in Giaccio
v. City of New York, the U.S. District Court for the Southern District
of New York held that an employee could pursue a claim under the Americans
with Disabilities Act (ADA) despite the fact that he did not suffer
from a disability.
Peter Giaccio, a boilermaker
by trade, sued his employer, the New York City Department of Transportation
(DOT), alleging the DOT violated his rights to due process and equal
protection under §1983 and his right to confidentiality under the
ADA when the DOT revealed to the press the results of a random drug
and alcohol test.
To state a claim
for relief under §1983, Giaccio had to establish that he was deprived
of a constitutional right and that the alleged deprivation was committed
under color of state law. While the Supreme Court has held that the
right to keep private the status of one’s health is actionable
under §1983, the district court nevertheless granted the DOT’s
motion to dismiss on the basis that the release of Giaccio’s drug
and alcohol test results did not amount to a constitutional violation.
To succeed in a claim for relief under §1983 against a municipality
a plaintiff must allege that a deprivation of the plaintiff’s
constitutional rights resulted from a custom or policy of the
municipality. Since Giaccio’s claim concerned a single incident
of unconstitutional activity, there was no basis to establish a custom
or policy on the part of the DOT.
Giaccio was successful however,
in defeating the DOT’s motion to dismiss his ADA claim. Under
the ADA, an employer’s ability to make disability-related inquiries
or require medical examinations is extremely limited. The extent of
an employer’s ability to make such inquiries or require medical
examinations is analyzed differently in each phase of employment.
The ADA prohibits
all disability-related inquiries and medical examinations prior to an
offer of employment, even if they are job-related. After an
applicant is given a conditional offer but before beginning work, an
employer may make disability-related inquiries and conduct medical examinations,
regardless of whether they are job-related, and provided employers do
so consistently. Once employment begins, employers may make disability-related
inquiries and require medical examinations only if they are
job-related and consistent with business necessity.
In the instant case, the
DOT argued that tests for illegal drugs are not considered medical examinations
under the ADA and, therefore, are not protected by the ADA’s confidentiality
provisions. Giaccio argued that it was irrelevant whether the drug and
alcohol tests were medical examinations under the ADA because at a minimum
they meet the statutory definition of a disability-related “inquiry,”
thereby invoking the confidentiality protections of the Act.
A disability-related inquiry
under the ADA is any question that is likely to elicit information about
a disability. Giaccio argued that the drug and alcohol tests represent
inquiries into his ability to perform job-related functions. Giaccio
further argued that federal regulations require that information obtained
through periodic physicals and “other medical monitoring”
required by federal safety regulations is to be treated as a confidential
medical record.
In response, the DOT argued
that questions concerning an employee’s current illegal use of
drugs are not disability-related inquiries and therefore are not subject
to the nondisclosure requirements of the ADA. The district court held
that while it was certainly permissible for the DOT to require that
Giaccio submit to a random drug and alcohol test, the confidentiality
provisions of the ADA and federal safety regulations required the DOT
to maintain the results in confidence. The court held that regardless
of the stage of employment, any and all information obtained concerning
the medical condition or history of an employee must be maintained on
separate forms and in separate medical files and treated as a confidential
medical record. Therefore, the DOT’s motion to dismiss was denied,
and Giaccio was permitted to advance his ADA claim to the trial phase.
Employer
Notes: Medical information pertaining to employees must be
held to strict confidentiality standards. These standards include keeping
such information in separate files, away from personnel records, and
permitting limited access to such records. Medical files should be in
secure cabinets and access strictly monitored. Employers should not
discuss medical information regarding employees without a strict business
reason for doing so and should refrain from asking employees medical
questions without a business need. In all cases of concern, employment
counsel should be consulted.
Submitted by Beth
Hinsdale, Principal, Grotta, Glassman & Hoffman P.A., Roseland,
N.J. You can contact Ms. Hinsdale at hinsdaleb@gghlaw.com.
Reprinted from
Council’s Public Sector Personnel Law Update
newsletter. To subscribe or order a free trial subscription, click
here.
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