Asking About Employee’s Medical Conditions
While prohibiting employers from discriminating against people with disabilities, the federal Americans with Disabilities Act (ADA) also prohibit “covered” employers (with 15 or more employees) from asking applicants or current employees about any medical conditions that might reveal the existence, nature or severity of a disability; in general, an employer may ask disability-related questions and require medical examinations of an applicant only after a conditional job offer has been extended to the applicant. The Equal Employment Opportunity Commission (EEOC) provides guidance for these ADA provisions regarding asking about employee’s medical conditions.
A disability-related inquiry means a question that is likely to elicit information about a disability. At the pre-offer stage, an employer cannot ask disability-related questions. For example, Applicant X with no known disability is at a job interview, and the applicant has not asked for any reasonable accommodation. The employer may not ask, “Will you need a reasonable accommodation to perform this job?” If many possible answers to a question exist and only some of the responses may consist of disability-related information, then that particular question may not necessarily be disability-related.
Additionally, in this pre-offer stage, an employer should not make any inquiries or requirements for the applicant to take a medical examination, which is a procedure or test seeking information about an individual’s physical/mental impairments or health.
After presenting a conditional job offer to an applicant and before the candidate begins working, an employer may ask disability-related questions and conduct medical examinations. For example, an employer may inquire about the person’s workers’ compensation history, previous sick leave usage, impairments, illnesses, diseases, and general physical and mental health. If the conditional offer is then rescinded, the employer must be able to establish that the impairment for which it was withdrawn is one that would make the individual unqualified to perform the essential job duties (even with reasonable accommodation) or that the individual poses a direct safety threat due to the condition.
While disability-related questions and medical examinations at the post-offer state do not have to be job-related, any inquiries and examinations should be the same for all entrants in the same job category. Any medical information gathered must be kept confidential and should be documented in a separate file folder. While disability-related questions and medical examinations are allowable, at no time may an employer request or require an individual to fill out a family medical history as that may violate the Genetic Information Nondiscrimination Act (GINA).
As a final note, once an employee has actually started work, inquiries and exams may only be conducted when they are directly job-related and may not be made solely of a protected category of people.