Expert Insight: Don’t ask, don’t tell: Medical information
Employers logically like to know that employees are able to perform their job functions. Whether the ability is mental or physical in nature, employers often require job applicants to undergo pre-employment medical exams. Employers also like to know that, once on the payroll, employees remain able to cut the mustard.
Employers may not, however, ask medical questions or require medical exams of applicants and employees willy-nilly. This can catch employers off guard. Failure to understand when to ask and when not to ask can help avoid an expensive claim under the federal Americans with Disabilities Act (ADA).
ADA, not HIPAA
Employers might think that the Health Insurance Portability and Accountability Act (HIPAA) governs applicant and employee medical information privacy. But the HIPAA privacy rules apply to employers in their activities as group health care plan sponsors, not in their activities as employers.
Outside of the group health care plan, the federal Americans with Disabilities Act (ADA) governs employee and applicant medical information. Employees and applicants don’t have to have disabilities to have their medical information kept safe.
Traffic lights
The ADA divides its restrictions on medical questions and exams into three sections, which resemble traffic lights: red (stop), green (go), and yellow (yield).
Before a job offer – Red light: Employers may not ask medical questions or require medical exams of applicants before offering the job. Some federal laws require employers to have applicants undergo medical exams, but they don’t specifically dictate that they must be done after a job offer. The ADA does.
After a job offer – Green light: Employers may ask medical questions and require medical exams, as long as they are done for all candidates in the job category.
After hire – Yellow light: Employers may ask medical questions or require medical exams only if they have a reasonable belief, based on objective evidence, that a particular employee is unable to perform the job’s essential functions because of a medical condition or will pose a direct threat because of a medical condition.
Having a blanket policy asking employees medical questions, for example, requiring them to disclose medications they are taking, will likely violate the ADA, as this does not focus on a particular employee.
Other laws
Employers may, however, ask employees for a certification supporting the need for leave under the federal Family and Medical Leave Act (FMLA) without violating the ADA. Employers must, however, keep employee medical information confidential.
When another federal law requires employers to ask medical questions or require medical exams, employers also do not violate the ADA. Employers just need to remember the “when” regarding asking the questions or requiring medical exams.
Key to remember: Friends, be careful out there; don’t ask for applicant or employee medical information when you shouldn’t, and keep related information safe.
