Module 6: Medical Information & Confidentiality

Requests for medical information and disability-related inquiries often occur in the workplace. Title I addresses this issue in terms of when the request is made. Title I of the ADA limits an employer's ability to make disability-related inquiries or require medical examinations at three stages:

• Pre-employment, pre-offer (before a job is offered)
• Pre-employment, post-offer (an offer has been made but the person is not yet an employee)
• During employment

Pre-Employment

This is the application, interview, reference phase. This phase includes everything that occurs before a job offer has been made. An employer may not ask disability-related questions and may not conduct medical examinations before it makes a job offer. For a lengthier discussion of this subject see Module 5: Pre-employment Do’s and Don’ts.

Post-Offer

An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry. An employer may ask disability-related questions and require medical examinations after it makes a conditional job offer, if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be "job-related and consistent with business necessity."

However, if the question or examination screens out a person because of a disability, the employer must demonstrate that the reason for the rejection is "job-related and consistent with business necessity.”

During Employment

After a person is employed, in other words, during employment, the door closes somewhat on an employer’s gathering of medical information. During employment an employer may make disability-related inquiries and require medical examinations only if they are “job-related and consistent with business necessity.”

Disability-related inquiries and medical examinations of employees must be "job-related and consistent with business necessity." Here are three circumstances that are “job-related and consistent with business necessity”

• When an employee requests reasonable accommodation and the disability and/or the need for the accommodation is not obvious
• When an employer has reasonable belief based on objective evidence that an employee's ability to perform essential job functions will be impaired by a medical condition
• When an employer has reasonable belief based on objective evidence that an employee will pose a direct threat due to a medical condition

Confidentiality of Medical Information

Employers must keep confidential any medical information about applicants and employees. All medical records must be kept in separate, locked files apart from personnel files, and employers must restrict access to a specific person or persons.

Employers may:

• Inform supervisors and managers about work restrictions and necessary accommodations.
• Inform first aid and safety personnel about emergency treatment or specific evacuation procedures.
• Provide relevant information to government officials investigating compliance with the ADA and other federal and state laws prohibiting discrimination on the basis of disability.
• Provide information to state workers' compensation offices or "second injury" funds, in accordance with state workers' compensation laws.

Frequently Asked Questions

1. After an employer has obtained basic medical information from all individuals who have been given conditional offers in a job category, may it ask specific individuals for more medical information?

Yes, if the follow-up examinations or questions are medically related to the previously obtained medical information.

Reference: E E O C Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations

2. May medical information be given to decision-makers involved in the hiring process?

Yes. Medical information may be given to - and used by - appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA. In addition, the employer may use the information to determine reasonable accommodations for the individual. For example, the employer may share the information with a third party, such as a health care professional, to determine whether a reasonable accommodation is possible for a particular individual. The information certainly must be kept confidential. Of course, the employer may only share the medical information with individuals involved in the hiring process (or in implementing an affirmative action program) who need to know the information. For example, in some cases, a number of people may be involved in evaluating an applicant. Some individuals may simply be responsible for evaluating an applicant's references; these individuals may have no need to know an applicant's medical condition and therefore should not have access to the medical information.

Reference: E E O C Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations

3. May an employer make disability-related inquiries or require a medical examination of an employee based, in whole or in part, on information learned from another person?

Yes, if the information learned is reliable and would give rise to a reasonable belief that the employee's ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, an employer may make disability-related inquiries or require a medical examination. Factors that an employer might consider in assessing whether information learned from another person is sufficient to justify asking disability-related questions or requiring a medical examination of an employee include: (1) the relationship of the person providing the information to the employee about whom it is being provided; (2) the seriousness of the medical condition at issue; (3) the possible motivation of the person providing the information; (4) how the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and (5) other evidence that the employer has that bears on the reliability of the information provided.

Reference: E E O C Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA

4. May an employer ask all employees what prescription medications they are taking?

Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee's inability or impaired ability to perform essential functions will result in a direct threat.

Reference: E E O C Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA

5. May an employer require that an employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer's choice?

Yes. The determination that an employee poses a direct threat must be based on an individualized assessment of the employee's present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence. To meet this burden, an employer may want to have the employee examined by a health care professional of its choice who has expertise in the employee's specific condition and can provide medical information that allows the employer to determine the effects of the condition on the employee's ability to perform his/her job. Any medical examination, however, must be limited to determining whether the employee can perform his/her job without posing a direct threat, with or without reasonable accommodation. An employer also must pay all costs associated with the employee's visit(s) to its health care professional.

Reference: E E O C Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA

6. May an employer make disability-related inquiries or require a medical examination when an employee who has been on leave for a medical condition seeks to return to work?

Yes. If an employer has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee's ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee's leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

Reference: E E O C Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA

7. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

Reference: E E O C Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

8. May an employer ask employees whether they will require assistance in the event of an evacuation because of a disability or medical condition?

Yes. Some employees may need assistance because of medical conditions that are not visually apparent. Others may have obvious disabilities or medical conditions but may not need assistance. Employers, therefore, are allowed to ask employees to self-identify if they will require assistance because of a disability or medical condition.

Reference: E E O C Fact Sheet on Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures

9. What should an employer do if it learns about an employee's medical condition from someone else?

The employer should determine whether the information learned is reliable. The employer should consider how well the person providing the information knows the individual, the seriousness of the medical condition, and how the person learned the information. The employer should then determine whether the information gives rise to a reasonable belief that the employee in question will be unable to perform the essential functions of his or her job because of the medical condition or will pose a direct threat because of the condition. If the information does give rise to such a reasonable belief, then the employer may make disability-related inquiries or require a medical examination as permitted by the Guidance.

Reference: E E O C Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA

This is the end of Module 6.

Next Module: Complaints

Course Contents

• Course Introduction
• Module 1: Who has obligations
• Module 2: Who has rights
• Module 3: Reasonable Accommodation
• Module 4: Performance & Safety
• Module 5: Pre-Employment
• Module 6: Medical Information & Confidentiality
• Module 7: Complaints
• Resources