Wednesday, March 8, 2023

Someone needs to take away Elon Musk’s twitter access

The reality is that this guy (who is independently wealthy) did no actual work, claimed as his excuse that he had a disability that prevented him from typing, yet was simultaneously tweeting up a storm.

That was Elon Musk's very public, and very offensive, tweet to a former Twitter employee who had asked whether the company still employed him, as his network access had been inactive for nine days and no one from HR could confirm his employment status.

The employee's response

I have muscular dystrophy. It has many effects on my body.

As I told HR (I'm assuming that's the confidential health information you are sharing) I can't work as a hands on designer for the reasons outlined above. 

I'm typing this on my phone btw. It's easier because I only need to use one finger.

That sound you hear is every single employment lawyer and HR professional gasping at once. Why? Because an employer breaking confidentiality to share an employee's medical information is about as unlawful as it gets.

As the EEOC explains

The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination, … as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.

I'm going to go out on a limb and say that no exception exists, under the ADA or otherwise, that would allow an employer to publicly share an employee's health status, especially via social media. I could craft an argument that Elon technically complied with the ADA, as he did not disclose actual medical information but instead just the fact of a claimed disability. That argument, however, unnecessarily splits hairs. Further, even if it's not a breach of confidentiality, it is an admission of disability discrimination, which is even worse. 

Employers, learn something from Elon's mistake. Don't post an employee's medical info online, and don't post an explanation for a termination. No good will ever come from either. 

*Postscript: Elon apologized. But is it really an apology if you only do it after your post goes viral for its awfulness?