Imagine receiving a job application from an individual who appears highly qualified for the position you seek to fill. You eagerly invite the person to interview, but you are slightly surprised when he arrives because he uses a wheelchair and cannot travel up the stairs at the front door to the office.
Or picture a valued worker who suddenly begins to appear continually exhausted and starts losing her hair. She starts calling in sick frequently, and becomes far less productive. One of her co-workers then tells you that this valued worker is undergoing cancer treatment, but doesn’t want anyone to know.
Employers might think that because employees’ medical information is private, they should simply avoid the subject — and if they don’t ask questions, they won’t get into trouble. But employers can easily imagine situations in which they might want to know more.
Employers can lawfully ask employees about medical information for a variety of reasons, including to accommodate a disability or to provide required leave. Both of these reasons relate to employment, which means that the Health Insurance Portability and Accountability Act has little to do with these inquiries because it generally does not apply to employment records. Because the circumstances under which employers might need employee medical information are so varied, following is only a general overview of the key principles governing requests for medical information in the disability and medical leave contexts.
Several laws govern the rights of employees with disabilities, but the main one is the Americans with Disabilities Act. The ADA seeks to both eliminate discrimination and ensure that individuals with disabilities receive reasonable accommodations to perform their jobs. These dual purposes can create difficulty.
On one hand, the law discourages seeking disability-related information from an employee or job applicant, to prevent discrimination. On the other hand, the law requires an employer to obtain enough information to be able to provide reasonable accommodations when needed.
To make things even more challenging, the ADA obligates employers to provide reasonable accommodations not only for those who have jobs, but also for job applicants. An employer is usually forbidden from asking job applicants whether they have a disability, but is simultaneously required to provide the applicant with reasonable accommodations required to complete the application process. The best approach, therefore, is to invite all applicants to request reasonable accommodations if required.
Employers can also ask all applicants whether they can perform particular job functions either with or without reasonable accommodation. And, if an applicant’s disability is obvious, or the applicant says that he or she has a disability that could interfere with performing job duties, the employer can ask the applicant to describe or demonstrate how he or she would perform certain job duties. Finally, applicants might bring up the subject and ask for reasonable accommodation, and then, employers may ask them what type of accommodation they require.
Employers can carry the principle a step further and consider the case of conditional job offers: giving a person a job offer conditioned on passage of a test. This practice is permissible so long as all similarly situated applicants are required to pass the test in order to gain employment.
The test might require applicants to exhibit certain skills or abilities required to perform the job safely, either with or without reasonable accommodation. If an applicant fails the test and is denied a job, the reason must be job-related and consistent with business necessity – the fact that an applicant requires reasonable accommodation to perform a job does not constitute sufficient reason to deny him or her the position.
An employer might also need to ask people for medical information once they are employed; for example, if they ask for a reasonable accommodation, or exhibit performance problems that can be reasonably attributed to a medical condition of which the employer is aware.
Employers can become aware of an employee’s medical condition in various ways: notification from the employee, observation, or reliable information from someone else. In any case, the goal is for an employer to obtain only that information it needs and nothing more — information sufficient to describe the employee’s disability and to substantiate why an accommodation is needed.
An employee may also need leave from work to care for his or her own health or the health of a family member. Numerous laws define employee entitlements to leave, including the federal Family and Medical Leave Act, the Oregon Family Leave Act and the Portland Protected Sick Time Ordinance. Detailed regulations implementing these laws set forth procedures for, and constraints on, obtaining medical information from employees.
An employer might need information from an employee to certify that leave is required, during leave if circumstances change, or upon an employee’s return from leave, to show that the employee can safely resume his or her duties. In some cases, the law does not provide for employees to certify initially that leave is required. An employee is entitled to take up to three consecutive days of Portland sick leave, for instance, without providing any sort of medical verification.
Ultimately, both disability and leave law requirements are detailed and complex, and employers are likely to encounter many occasions on which they might legitimately seek employee medical information. When in doubt about when and how to inquire, consult with an employment attorney.
Banu Ramachandran, an attorney with Barran Liebman LLP, practices employment law. She offers advice to employers and litigates on their behalf. Contact her at 503-228-0500 or email@example.com.