Employment Law: Ask This ... Not That!
The conversation happens every day in businesses across America. An employee approaches her supervisor and casually says, "Hey, I've got to take off at 2 o'clock for a doctor's appointment — is that alright?" The well-intentioned supervisor, seeking only to make conversation and show empathy as we, as humans, are taught to do, responds, "Sure. Everything OK?" Has the supervisor asked too much? Has the supervisor impermissibly requested the disclosure of confidential employee medical information?
Employee medical information, and the need to maintain its confidentiality, impacts every stage of the employment relationship. While the restrictions placed on employee medical information may leave some employers feeling like they are walking on egg shells, one thing is inevitable; employers, at some point, will come into contact with employee medical information. To avoid the "minefield" of employment laws that address the confidentiality of employee medical information, employers need to understand the boundaries of when, and how much, you can inquire about confidential employee medical information.
While the general rule is that employers should avoid any and all questions about an applicant's medical history prior to making an offer of employment, there are three exceptions. First, the employer may conduct pre-employment inquiries into an applicant's ability to perform job-related functions, so as long as the inquiry is made of all applicants for the particular job. Such inquires must be narrowly tailored to the job-related function.
Second, an employer may request that an applicant demonstrate how he or she would perform the essential functions of the job for which he or she is applying. Once again, this inquiry must be very narrowly-tailored to the essential functions of the position applied for.
And third, in what comes as a surprise to some employers, if an applicant has an obvious or known disability, an employer may inquire as to what accommodation will be needed. In other words, there is no need to ignore the patently obvious. Nevertheless, and despite these exceptions, employers must remember, during the "pre-offer stage," they should never require a medical examination or ask a job applicant whether he or she has a disability.
After a job offer has been made, but before an employee begins work, an employer may require a medical examination and, in addition, condition the offer of employment on the results of such examination, provided that: (1) all incoming employees are subject to the same medical examination (irrespective of whether they have a disability); (2) the employer keeps the medical information on separate forms, in separate medical files, and treats it as a "confidential record;" and (3) the employer uses the results of the examination only to comply with the Americans with Disabilities Act (ADA).
After the medical examination is complete, an employer may not withdraw an employment offer based on the information obtained from the medical examination unless it is job-related or necessary for the conduct of the employer's business. The job offer may also be withdrawn if the individual's disability would constitute a "direct threat" to the health and safety of the employee and others (and no reasonable accommodation is available). Once again, employers must ensure that its use of the confidential employee medical information is limited to inquiries regarding the essential functions of the job in question and the health and safety of the workforce in general.