Contrary to popular belief, the most pertinent law for employers with regard to medical privacy is the Americans with Disabilities Act (ADA), not the Health Insurance Portability and Accountability Act (HIPAA). HIPAA does have privacy provisions, but they primarily apply to an employer’s activities related to a group health plan. They do not cover activities performed as an employer, such as requesting medical information from job applicants or employees. Those requests fall under the ADA.
The ADA makes employment discrimination against qualified individuals who have a disability unlawful for all state and local government employers with 15 or more employees.
- Disability-related inquiry: A question (or series of questions) that is likely to elicit information about a disability.
- Medical examination: A procedure or test that seeks information about an individual’s physical or mental impairments or health.
Summary of requirements
Example: What are you on?
Here’s an example of a medical inquiry during employment. Fred, who works as a forklift operator, has already been employed by an employer. A few years ago, there was a problem with an employee in the same position. This other employee, Otis, was on medication that caused drowsiness, a fact which ultimately contributed to a forklift accident in the employer’s plant. Having gone through that situation, the employer now thinks it’s a good idea to ask all employees whether they are taking any medication.
While this may seem like a good idea, asking all employees to reveal any medications they are taking will not meet the ADA standard for being job related and consistent with business necessity. With such a blanket request, the employer would likely obtain information it doesn’t need to know. A blanket request also fails to focus on particular individuals and their specific situations, which is required by the ADA.
If an employee reports to taking medication for epilepsy or another condition that may qualify as a disability, the employer has obtained medical information that might not relate to job performance. In addition, the employer might not gain usable information about the potential impacts on job performance, since the effects of medications differ from one person to the next.
Instead, employees may be asked to voluntarily report any conditions (medical or otherwise) that might affect their ability to perform their jobs. Employees should be informed that if they have a medical condition which requires a change or adjustment to the workplace, they need inform the employer of any such requirements. However, be careful to communicate the reason for this request (e.g., to ensure everyone’s safety) and avoid creating the impression that employees must report any medications they are taking.
If, after employees have been asked to report conditions that might affect their ability to perform their jobs, the employer finds out that Fred is on medication, it is usually reasonable to ask Fred if he feels he can safely perform the job.
This is a better course of action than gathering information from a medication’s warning label. Warning labels such as “may cause drowsiness” are included at the recommendation of attorneys. Anyone who has seen a commercial for a prescription medication has heard a listing of possible side effects. A warning on a bottle of pills is just that — a possible side effect. Just because Fred’s admitted medication could cause drowsiness doesn’t mean it makes Fred feel drowsy.
However, if Fred expresses concern that his medication might affect his ability to safely perform his job, the employer needs to work with him to find a reasonable accommodation to help him perform the essential functions of his job. On the other hand, if Fred feels that he can perform his job duties without problems, the employer should accept that conclusion.
It may also happen that Fred thinks he can perform his duties despite the medication he’s taking, but the employer disagrees. If, despite Fred’s insistence, there is objective evidence that Fred cannot perform his job, this situations should be addressed as a performance issue. Explain to Fred what the problem is, and talk with him about how to help him fix it.
Basically, an employer should obtain only information that it needs to know and that is related to the job. If this can be accomplished without obtaining medical information, that’s usually the best course of action. When an employer does obtain medical information — whether it was requested, voluntarily provided, or inadvertently obtained —the employer then has a duty to keep that information confidential.
Keeping information private
Supervisors and managers may be informed of necessary restrictions or accommodations, but they may not need to know the underlying condition which necessitated the change. Similarly, first aid and safety personnel may be informed, when appropriate, if the condition might require emergency treatment. Otherwise, medical information about employees and applicants may not be shared. Essentially, employers should have a business reason for sharing information. If information is shared with managers, give them only the information they need to have (they may not need all of it). Be sure managers realize that they are privy to confidential information. They should not feel at liberty to share details of an employee’s medical condition with other employees.
Any documentation, such as requests for accommodation or medical leave, must be maintained in confidential files, separate from the general personnel file. This is the law under the ADA, but it’s also a good way to ensure medical information won’t be inadvertently shared with individuals who don’t have a good reason to see it.
For more information on the Americans with Disabilities Act, as amended (ADA), or the Health Insurance Portability and Accountability Act (HIPAA), see the topics by the same names.