Our employment law lawyers recently addressed that the Americans with Disabilities Act (“ADA”) makes it unlawful for any employer to share an employee’s medical records. (Best Law Reads: Can My Employer Share My Medical Information?; Law: Can My Boss Share My Confidential Medical Information?). The ADA also limits an employer’s ability ask for medical and disability information. Under the ADA, an employer’s ability to ask for information or request medical examinations related to an employees’ disability depends on whether the request occurs during one of three different periods: (1) pre-offer, (2) post-offer, and (2) during employment.
Can companies ask you if you have disabilities or medical conditions on job applications or at interviews?
Best Employment Law Lawyer Answer: Before an offer of employment is made to an employee, the ADA makes it illegal for an employer to ask any disability-related inquiries or require a medical examination. This is a complete prohibition. Employers cannot get around this prohibition even if the medical questions or examination are job related. However, there are two exceptions. These two exceptions occur if: (a) the applicant volunteers information related to a disability and/or need for an ADA accommodation; or (b) the applicant’s obvious disability caused the employer to have a reasonable belief that a reasonable accommodation to perform specific job functions will be needed. In these situations, the employer may inquire about the applicant’s need for a reasonable accommodation. See 42 U.S.C. §12112(c)(B)(1994); 29 C.F.R. §1630.13(a).
While avoiding questions about the applicant’s medical issues and disabilities, the ADA allows employers to ask job applicants if they are capable of performing central job and how they would go about performing the position being applied for.
Can companies ask you if you have disabilities or medical conditions as part of an offer or following an offer?
Best ADA Lawyer Answer: The ADA allows an employer to condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job have to answer the questions or take the exam. To that end, after the employer makes a conditional job offer, but the employee starts working, the ADA allows the employer to ask disability-related question and require medical examinations of the soon to be employee. However, the employer can only ask medical and disability related questions and conduct medical examinations at this point if the employer consistently does the same thing for all employees starting employment in the same job category. See 42 U.S.C. §12112(d)(3)(1994); 29 C.F.R. §1630.14(b).
If the employer chooses to withdraw the offer of employment based on the medical/disability screening questions or medial examination, the exclusionary job criterion that forms the basis of the employer’s decision must both be job-related and consistent with business necessity. See 42 U.S.C. §12112(b)(6)(1994); 29 C.F.R. §§1630.10, 1630.14(b)(3).
Can companies ask you if you have disabilities or medical conditions during employment?
Best Employment Attorney Answer: Once the employee begins working, the ADA allows an employer to initiate asking medical and disability related questions or mandate medical examinations only if the questions or exams are job-related and consistent with business necessity. See 2 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. §1630.14(c). Medical and disability related questions and exams will likely be considered “job-related and consistent with business necessity” when the employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”
For example, in the recent case of Coffey v. Norfolk Southern Railway Co., Michael Coffey, Jr., a railroad engineer, tested positive for amphetamines after a train he was operating derailed; and then on a later occasion, tested positive for amphetamines and codeine. Coffey told his employer that the amphetamines came from the Adderall he was taking for attention-deficit/hyperactivity disorder (ADHD), and the codeine was from Tylenol #3, which he was taking due to a back impairment. The United States Court of Appeals for the Fourth Circuit held: “Locomotive engineers in particular are ‘engaged in safety-sensitive tasks,’ for they ‘discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.’” As such, the Fourth Circuit held that asking for such medical information was “plainly” job-related and consistent with business necessity and that the employer was “more than justified in requesting enough information to permit an informed decision about whether it was safe for its locomotive engineer to operate a train.”
Can my employer ask me about personal medical and disability information because someone told my boss I am disabled or have a medical condition?
Best Disability Discrimination Lawyer Answer: As long as the information comes from a reliable source and reasonably causes the employer to believe that such medical condition or disability would impair the employee’s ability to perform essential functions of the job, the ADA allows the employer request medical and disability information as well as examinations.
There are several factors that an employer must consider in determining whether the information provided from a third-party satisfactorily supports requesting medical information or an exam from the employee, including: (1) the seriousness of the disability or medical condition; (2) the relationship and reliability of the third-party sharing the information; (3) the potential motivations of that third-party; (4) whether the third-party learned the information directly from the employee or whether it was simply gossip; and (5) any other evidence that weighed on the reliability of the information.
Can my employer ask for medical documentation when I ask for a disability accommodation at work?
Best Employment Disability Accommodation Attorney Answer: Yes. When the employee as initiated an accommodation process under the ADA, the employer is entitled to information that allows it to determine if the employee has a covered disability and evaluate what reasonable accommodations may be available. But, while an employer is permitted to require an employee to provide medical information and documentation to establish a disability under the ADA and determine a reasonable accommodation, the employer is strictly forbidden from seeking medical and disability information, documentation, and examinations that are unrelated to the accommodation request. As such, this typically precludes an employer from requiring the employee to provide a release to obtain the employee’s complete medical records as such records will undoubtedly hold information unrelated to the disability and accommodation request at issue. Even if an employee has more than one disability, the ADA only permits the employer to ask for information limited to the disability which is the basis of the employee’s accommodation request. To that end, medical documentation is sufficient under the ADA if it: (1) describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and (2) substantiates why the requested reasonable accommodation is needed.
Can my employer ask for medical documentation when I ask for FMLA leave?
Best FMLA Lawyer Answer: The Family and Medical Leave Act (“FMLA”) provides 12 weeks of unpaid leave to qualified employees who work for covered employers to address personal or family medical issues. (Best Law Reads: Top FMLA Lawyer: Am I Eligible For Medical Leave From Work?; and Are All Employees Eligible For FMLA? – Call The Right Attorney).
To initiate the process to request FMLA leave, an employee must give the employer notice of the request for leave, stating a qualifying reason under the FMLA for the requested leave. In response, an employer can require the employee to support the FMLA leave request by providing a certification issued by a health care provider. A “sufficient” medical certification must provide the following information: (1) when the serious health condition began, (2) the probable duration of the condition, (3) relevant medical facts, (4) a statement that the employee is unable to perform the functions of her position, (5) the dates and duration of any planned medical treatment, and (6) the expected duration of the leave. If the employer believes that an employee’s FMLA certification is vague, ambiguous, incomplete or non-responsive, the employer is required to advise the employee of the additional information needed to make the certification complete and sufficient. (Best Law Read: What Kind Of Documents Do I Have To Give My Boss To Get FMLA Leave?).
What should I do if boss keeps asking me about my private medical information?
Best Wrongful Termination Lawyer Answer: If your boss, supervisor, manager, or even the owner of the company that you work for keeps asking about your private medical or disability information, or has wrongfully terminated you for refusing to provide such information, it is important to get the very best legal advice that you can find. At Spitz, The Employee’s Law Firm, our employment lawyers work exclusively with employees to protect their rights. We will provide you with a free and confidential consultation. Your best option is to call now for an appointment. We handle cases throughout the United States and have offices in Cleveland, Columbus, Toledo, Cincinnati, Youngstown and Detroit. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA, FMLA, and Ohio employment law.
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