An employee walks into her supervisor’s office, complaining of a headache and saying that she thinks her new medication is giving her migraines. “I’m sorry to hear that!” the supervisor says. “What are you taking?” As innocent as the question may seem, the supervisor has likely violated federal law by asking it.
One can easily imagine this scenario unfolding in the workplace and, by extension, can imagine how easy it is to run afoul of certain federal laws regarding employers’ requests for applicants’ and employees’ medical information—namely, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. These are the types of pitfalls that David Fram, director of ADA and equal employment opportunity services with the National Employment Law Institute, warned employers about recently in day two of NELI’s ADA & FMLA Compliance Update (see related blog, “On the Importance of Documenting Facts,” for highlights from day one).
The ADA is unlike other federal laws, Fram explains, because it states that you can’t ask certain medically-oriented questions. While it may be unwise to ask such questions under other federal laws like Title VII (because, for example, doing so may provide evidence of bias), asking such questions under the ADA can be the basis for a lawsuit in and of itself, even if the employer hasn’t discriminated against an applicant or employee. In his presentation, Fram outlined best practices for employers when it comes to requesting and handling medical information from applicants and employees.
Under the ADA, an employer generally can’t ask an applicant medically-related questions before offering him or her a job. “This part of the law protects everyone, with or without disabilities,” Fram explains. All medical questions are prohibited, including those that are related to the job.
As to questions regarding accommodations, Fram says the law prohibits an employer from asking all applicants whether they will need reasonable accommodation to perform a job. However, he adds, where an applicant’s disability is obvious or has been voluntarily disclosed, or where an applicant says he or she needs an accommodation to do the job, an employer may ask whether and what type of accommodation would be necessary.
Because of these strict requirements, Fram recommends a “bright-line rule” for supervisors when it comes to the pre-offer stage: “no medical questions,” regardless of the nature of the job. This rule includes questions about family medical information. “If you want to really play it safe,” he says, “teach your supervisors and managers about GINA, as well.” GINA prohibits employers from asking applicants or employees about family medical information, which, in addition to an applicant’s or employee’s own genetic information, includes information such as his or her parent’s, spouse’s or child’s medical diagnosis or treatment. Therefore, supervisors need to understand that they could violate GINA by asking seemingly harmless questions about the health of a family member.
What can an employer do to ensure that an applicant is able to perform the job, if medical questions aren’t allowed? Under the ADA, Fram explains, an employer can ask an applicant to describe or demonstrate how he or she would perform the tasks of the job. “When you really don’t know whether someone is going to be able to do something,” Fram says, “give them a chance to describe or demonstrate.” An employer should be mindful, however, that if the applicant requires accommodation for the demonstration, the employer must provide the accommodation if it doesn’t impose an undue hardship. As an alternative, an employer also may list the physical requirements of the job and ask the applicant if he or she would be able to perform them, with or without accommodation.
After a conditional offer is made, Fram says, separate rules apply before and after employment begins. Once a job offer has been made, but before the individual begins his or her employment, the incoming employee needs to have a disability in order to be protected by the law, unlike the pre-offer stage. Employers can ask any medical questions or any questions about his or her need for accommodation, as long as the questions are asked of all incoming employees and don’t violate GINA. The questions don’t even need to be job related, although Fram notes that, for best practices purposes, asking medical questions unrelated to the job would be unwise as they could later serve as evidence of discrimination.
Once employment begins, any medical questions must be “job related and consistent with business necessity,” and employees are again protected regardless of whether they have disabilities. Fram recommends that employers “insulate” supervisors by informing them not to request any medical information from their employees. An example to be mindful of is the use of doctors’ notes—supervisors should be careful not to ask for more information than they need. Seeking a general diagnosis, when all that is needed is confirmation that an employee was absent from work because he or she was under a doctor’s care, may violate the ADA. Fram also recommends that, where possible, supervisors should direct employees to submit doctors’ notes and other medical information directly to human resources staff.
Lastly, Fram cautions employers about the need to maintain the confidentiality of employee medical information. “The EEOC has been taking a very, very hard line on confidentiality,” he says. Supervisors must be trained not to share employees’ medical information—even in situations where they share such information because they have genuine concern for the employee. A supervisor may violate the ADA by telling an employee’s co-workers about the medical reasons that he or she is on leave, or by providing medical information to his or her union steward. “The lesson learned here is that it doesn’t matter what your intent is as the supervisor, in sharing the information. You’ve got to keep that information secret.”
Employers also must be aware of the need to keep medical information separate and secure. Notably, an employer may be liable for disclosure of confidential medical information even if files containing such information are simply left on a desk and no other employees see them. Here, Fram recommends another bright-line rule: “keep medical information separate from non-medical information” and keep it under “lock and key.” Paper medical records must be kept in a separate, locked file and electronic files must be password protected, with passwords only made available to appropriate decision-makers. And medical information should never be kept in an employee’s non-medical personnel file.
Navigating the laws regarding what’s permissible and what’s not when it comes to medical inquiries can be difficult, and even the most well-intentioned supervisors can create headaches for employers by asking improper questions. Providing supervisors and human resources employees with clear rules for requesting and handling medical information can go a long way towards preventing ADA and GINA violations.
Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)