Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—11th Cir.: Rehab Act unlawful disclosure claim, based on diagnosis disclosed on FMLA form by VA employee, is revived, (Aug 11, 2025)

By Kathleen Kapusta, J.D.

“The upshot is that when an employee must share medical information to receive benefits guaranteed by law, the requirement operates as an inquiry by the employer.”

Noting that it had not previously addressed whether an employee’s disclosure of confidential medical information in an FMLA leave form constitutes an inquiry by the employer within the meaning of the Rehab Act, the Eleventh Circuit held that “when an employer conditions an employee’s access to statutorily protected leave on the submission of medical information, that is an ‘inquiry’ under § 12112(d)(4),” for which the court recognized a private right of action irrespective of disability status. The court accordingly reversed summary judgment against the unlawful disclosure claim of a Department of Veterans Affairs employee who alleged the department failed to protect and unlawfully disclosed her cancer diagnosis, which she had revealed on an FMLA form. It affirmed, however, summary judgment on her disability discrimination and failure to accommodate claims. Judge Tjoflat concurred and Judge Jordan concurred in part and dissented in part (Mullin v. Secretary, U.S. Department of Veterans Affairs, No. 22-12354 (11th Cir. Aug. 8, 2025 reh'g denied Dec. 12, 2025, opinion vacated and substitute opinion issued)).

Respiratory issues. In July 2010, the employee, a Ratings Veterans Service Representative, began experiencing respiratory issues at work that worsened over time. In December 2011, the department granted her request for an alternative work schedule limiting her time in the building and for the relocation of her workstation. In January 2012, the department provided her with an air purifier.

Cancer diagnosis. In March 2012, the employee was diagnosed with breast cancer. Her oncologist, on an FMLA certification form, noted that she would require a six-month leave for surgery, chemotherapy, and potential radiation. Two months later, a union steward, in an email to the employee, told her he had heard about her “condition” from the HR manager, who believed her breathing issues were caused by her tumor, not by any problems with the building.

Accommodations. The employee returned to work in January 2013 and requested the ability to work entirely remotely. Four weeks later, the department agreed to move her workstation and provided her with another air purifier. In March, she was provided with a third air purifier. After some back and forth with her doctor, the department, in April, permitted her to work entirely from home.

Lower court proceedings. She ultimately sued, asserting claims under the Rehab Act for disability discrimination based on disparate treatment and failure to accommodate, unlawful disclosure, and retaliation. The district court granted summary judgment for the department on all claims.

Disparate treatment. On appeal, the employee first argued that she suffered disability discrimination because the department denied her request for advanced sick leave. The record, however, reflected that on the day her doctor provided the relevant documentation for her advanced sick leave, the department approved her request and continued to approve advanced sick leave for her even though she had used all her leave. Nor was there anything in the record to show that a request for sick for leave was denied even in part due to her disability. Accordingly, the court affirmed summary judgment against this claim.

Failure to accommodate. The employee next argued that the department unduly delayed in providing her a full-time work-from-home accommodation for 10 months. Noting, however, that she was on medical leave due to her cancer treatment during the latter half of 2012 and did not return to work until January 2013, the court explained that she could not “fairly cast the period in which she was away from work due to her cancer treatment as an unreasonable delay on the part of the Department.” Thus, the delay in granting her requested accommodation was three, not 10, months.

As to whether the department provided a reasonable accommodation, the court pointed out that before the employee’s cancer diagnosis, it provided her with multiple accommodations that were in direct response to her requests and suggestions including modifying her work schedule, relocating her upon request, and providing her with air purifiers. After she returned to work following her cancer treatment, the department resumed the interactive process, moved her workstation, further modified her work schedule, and continued to provide her with air purifiers.

Further, it ultimately granted her desired accommodation of full-time remote work. Moreover, said the court, the three-month delay in granting this accommodation was not unreasonable given the accommodations it had already provided. Thus, the district court did not err in granting summary judgment against this claim.

Unlawful disclosure. Turning to the employee’s claim the department unlawfully disclosed her confidential and sensitive medical information, the court first noted that the Rehab Act incorporates the confidentiality provisions of the ADA. Pursuant to 42 U.S.C. § 12112(d)(4)(A), “[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Noting that it had not addressed whether there is a private right of action under 42 U.S.C. § 12112(d)(4), the court recognized such a right irrespective of disability status.

Inquiry. Addressing next the department’s assertion that it did not make an inquiry because the employee revealed her condition on the FMLA form, the court noted that it had not previously addressed whether an employee’s disclosure of confidential medical information in an FMLA leave form constitutes an inquiry by the employer within the meaning of the Rehab Act. “We now hold that when an employer conditions an employee’s access to statutorily protected leave on the submission of medical information, that is an ‘inquiry’ under § 12112(d)(4).” That statute, said the court, prohibits employers from making medical inquiries unless they are job-related and consistent with business necessity and that restriction “cannot be avoided simply because the employer’s demand for information is embedded in the mechanics of leave approval.”

Here, the court observed, when the employee requested leave, the department told her that approval required submission of additional medical documentation and thus when she was diagnosed with cancer, she did what the department told her to do—she submitted additional medical documentation. She did not volunteer the information but rather, because pursuant to the department’s previous communications, disclosing the information was the only way to maintain her leave and her pay. “The upshot,” said the court, “is that when an employee must share medical information to receive benefits guaranteed by law, the requirement operates as an inquiry by the employer. We therefore hold that, as a matter of law, there was an inquiry here.”

Unlawful disclosure. As to whether the confidential information from the inquiry was disclosed in violation of the Rehab Act, the department argued that the employee failed to show her cancer diagnosis was confidential. There was no proof, it contended, that the union steward’s knowledge of the employee’s diagnosis came first from the HR manager. Further, it claimed, the employee told other people about her diagnosis before she received the union steward’s email.

The court, however, pointed to an internal department memorandum approving the employee’s FMLA leave request for her cancer diagnosis that was dated before the union steward’s email and signed by the HR manager, which stated that “[t]he specific medical condition was intentionally left off . . . to avoid accidental disclosure.” In addition, the union steward’s email to the employee, which came after the department had approved her FMLA request, stated that he and the HR manager had discussed her cancer diagnosis. Moreover, said the court, there was insufficient evidence to show the union steward learned of the diagnosis from anyone other than the HR manager. Thus, the court stated, a reasonable jury could find the HR manager disclosed the employee’s cancer diagnosis to the union steward after the FMLA form was submitted.

Tangible injury. Finally, the court found the employee sufficiently established that she suffered a tangible injury from the alleged unlawful disclosure. She alleged she suffered emotional distress because of the alleged unlawful disclosure of her cancer diagnosis, which distracted her from caring for herself and from focusing on healing and health. There were also two letters from the Department of Labor Office of Workers’ Compensation Programs updating her medical conditions in her file to include PTSD and major depressive disorder.

Finding fact issues as to whether the HR manager improperly disclosed the employee’s confidential cancer diagnosis, whether she obtained that information from the FMLA form or from the employee’s voluntary disclosure, and whether the employee suffered a tangible injury as a result, the court reversed summary judgment on this claim.

Tjoflat concurrence. In his concurrence, Judge Tjoflat argued that the employee’s complaint was a shotgun pleading that should not have proceeded as written.

Jordan partial concurrence and dissent. Concurring in part and dissenting in part, Judge Jordan joined the majority’s opinion as to all but its resolution of whether the department initiated an inquiry for purposes of 42 U.S.C. § 12112(d)(4). Here, he found a genuine issue of fact as to whether the department made an inquiry into the employee’s cancer diagnosis. Judge Jordan noted evidence the employee had previously told a coworker and a manager about her diagnosis, she could not recall whether the department provided her with the FMLA form and if so when, and it looked like she voluntarily submitted the FMLA form to the department with the medical provider’s portion, which set out her diagnosis, already completed.

Judge Jordan “would set aside the district court’s summary judgment in favor of the Department as to the § 12112(d)(4) inquiry claim and have a jury decide, among other things, whether the Department initiated an inquiry.”

The case is No. 22-12354.

Judge: Per curiam.

Attorneys: James Radford (Radford Scott) for Aileen Mullin. Holly Lynn Gershow, U.S. Attorneys' Offices, for Secretary, U.S. Department of Veterans Affairs.

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