An employee’s health will always be relevant to his or her employer. After all, an employer will want to know whether an employee has a medical condition that may impact their ability to perform their job. However, long gone are the days when an employer can just ask an employee to turn over medical records or disclose medical conditions. So, how can an employer obtain relevant employee medical information without violating the law?
First, employers should have a basic understanding of the laws governing employee medical information. The Americans with Disabilities Act (ADA) is the main law governing how employers obtain employee medical information, although the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act also are relevant.
The Americans with Disabilities Act generally prohibits an employer from asking a job applicant questions about medical conditions, even if that applicant does not have a disability or the question is related to an employee’s ability to perform a job. An employer cannot, for example, ask an employee if he or she will need a reasonable accommodation to perform a job. However, if a job applicant has voluntarily disclosed his or her disability, this opens the door for an employer to ask about that disability and whether a reasonable accommodation would be necessary.
Even when an employer has a right to know about an employee or candidate’s medical condition, most questions about family medical information are unlawful as they violate GINA. GINA prohibits an employer from asking job applicants or employees about family medical history, which includes not only genetic information, but also information about family members’ medical diagnoses or treatment. Moreover, asking for medical information could provide evidence of racial or gender bias which could support an argument that the employer violated Title VII. For instance, it’s never okay to ask about an employee’s family history of breast and ovarian cancer, even if an employee or candidate shares that they or a family member has been treated for such.
Once a job offer is made, an employer can ask an employee questions about his or her medical history, although those questions must be asked of all similarly situated employees. The questions should be related to the job, as questions unrelated to the job could be used as evidence of discrimination. Employers can, however, ask for a doctor’s note if an employee is going to take leave pursuant to the Family and Medical Leave Act. Employers must be sure, however, to keep such medical information confidential, as disclosing it could violate the ADA.
Employers should consider training their managers and supervisors about what questions should and should not be asked during a job interview. Employers may want to consider consulting with an experienced attorney before doing this.
