Employees get asked questions from their employers on a day-to-day basis. Some questions are innocent, while other questions may seem a little more personal. Either way, employees are not usually hesitant to answer employer questions, as they assume that any question asked must be necessary for the employer to know. While in many cases this may be true, when it comes to prying into an employee’s medical information, there are laws that protect employees from having to disclose.
The federal laws that protect employees from misdirected medical questions are hardline rules that no employer is at liberty to be exempt from. Specifically, the Americans with Disabilities Act (ADA) protects employees from the ever so often personal questions they may feel obligated to answer. Any medical information requested by an employer, governed by the ADA, can be the basis for a lawsuit on its own, absent actual discrimination. Title VII, under federal laws, also protects employees from medical information inquiries, but is less effective of a law than the ADA.
Pre-Hiring Medical Inquires
The ADA protections will kick in for any applicant, whether that applicant is disabled or not, before the applicant is offered the job. Essentially, an employer will be unable to request any medical information prior to hiring an applicant. Even if the questions are job-related, the employer must refrain from asking any sort of medical questions. Additionally, an applicant who may need accommodations may not be asked, before hiring, if they will need accommodations. However, where a disability is voluntarily disclosed, blatantly obvious, or the applicant states their need for accommodations, the employer may ask if they will need accommodations and what type of accommodations will be necessary.
In the absence of allowing an employer to ask whether accommodations will be necessary, an employer may ask an applicant to describe and/or demonstrate how they will effectively perform the tasks of the job. Nevertheless, an employer needs to be mindful that if an applicant does require accommodations to demonstrate their abilities, they must provide those accommodations, as long as they do not impose undue hardship. Alternatively, an employer may simply list the physical requirements of the position and inquire as to whether the applicant could perform them.
Post-Hiring Medical Inquiries
Separate rules apply for an applicant vs. a hired employee. Once the job has been offered to the applicant, but before employment begins, employers can make medical inquiries as to the disabled employee’s possible need for accommodations. Employers may also ask non-job-related questions but are often advised not to ask these questions, as they may lead to discrimination issues later.
After the employee begins employment, all medical questions must be “job-related and consistent with business necessity.” Here, employees will again be protected whether they have disabilities or not. If an employee calls in to take a sick day, the employer may legally request a doctor’s note to confirm that the employee was under a doctor’s care. While an employer is legally allowed to ask for a doctor’s note when an employee calls out sick, the employer should refrain from asking the specifics of the illness. Additionally, employees should request that doctor’s notes be directly submitted to the human resources staff to help maintain confidentiality and prevent discrimination. In addition, if an employee is returning from a long leave of absence following a medical condition, an employer may request a certification that states that the employee is fit to return.
Employer Confidentiality
If an employee voluntarily discloses the specifics of their illness with the employer, the employer is bound to maintain the confidentiality of that employee’s medical information. An employer may not, under the ADA, tell the employee’s co-workers about any medical information they know. This includes reasons the employee is on leave, reasons the employee is out for the day or any other medical information that is not necessary for the co-workers to complete their jobs. Additionally, while an employer can keep medical files of each employee, those files should be stored in a safe and secure location. An employer may be liable if they leave a medical file on their desk, intertwine the medical file with the employee’s work file, or if they place the medical file anywhere else besides a securely locked location. If the medical file is electronic, it must be password protected.
Navigating the laws of what an employer is and is not legally able to inquire from an employee can be difficult to understand. Even the most well-intentioned employers may ask for medical information that is improper. If you believe that you have been asked unnecessary medical questions by your employer it is important to have a New York employment law attorney on your side. To set up a consultation call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.
