817 Broadway, 6th Floor, New York, NY 10003
T: 212.228.9666 / F: 212.228.7654 / email@example.com
by Lee Bantle / No comments
Communications between doctor and patient are privileged and patients have a right to confidentiality in their medical records. Despite this, employers are allowed by law to gather medical information about their employees in certain specific circumstances. This article sets forth when and how employers can gather medical information about their employees under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
The ADA divides company-sponsored medical examinations and inquiries into three categories: pre-employment examinations the employer requests prior to an offer of employment, employment entrance examinations given subsequent to an offer of employment but prior to starting work, and examinations taken at any time after the employee has begun work.
The ADA prohibits pre-employment medical examinations or medical inquiries. An employer cannot inquire: 1) whether an individual has a disability 2) about past or current medical conditions; 3) or about any history of worker’s compensation. Employers may, however, question the job applicant about his ability to perform job-related functions.1
Employers may require all applicants to take a post-offer medical examination prior to the individual’s entrance into the company. An employer may conduct any medical tests it desires as part of an employment entrance examination. The exam does not have to be job-related and consistent with business necessity. However, the employer cannot pick and choose whom to test. All employees in the same job category must be subjected to examination.
The post-offer medical examination can obtain information that is valuable to the employer. The employer can determine, for example, if the individual is disabled, qualified to perform the essential functions of the job, constitutes a direct threat to the health or safety of himself or others at the workplace, uses illegal drugs or is in need of an accommodation.
The employer may make the job offer contingent upon the results of the examination provided that it makes all applicants for the same job category undergo the examination regardless of whether or not they are disabled. If an employer screens out an individual because he cannot meet the qualifying standards for the job, the employer must show that the standard is job-related, consistent with business necessity, and that no reasonable accommodation will enable the individual to perform the essential functions of the job.
If an employer requires an employee to undergo a medical examination or otherwise provide medical information subsequent to the beginning of employment, the ADA requires the examination or inquiry to be job-related and consistent with business necessity.
A business necessity may exist, for instance, where an employee has claimed that he is disabled. An employee may be required to provide sufficient information about the disability and the limitations it imposes to allow the employer to assess available reasonable accommodations. An employer need not rely on the employee’s assertions or the opinion of the employee’s own physician; it is entitled to determine whether the employee is in fact disabled by requiring examination by a health care provider selected by the employer. Thus, if an employee is absent on a regular basis, the employer could require medical examination to determine if the employee is disabled such that time off must be offered as a reasonable accommodation.
Other examples of business necessities where the employer may, in its discretion, require the employee to undergo a medical examination include when the employee has difficulty performing the functions of his job or when he has a high level of absenteeism.
In addition, if the employee has exhibited behavior that constitutes a direct threat to the health and safety of himself or others (e.g., violent behavior, threat of suicide), the employer may require him to undergo a medical examination to ensure that he no longer poses the direct threat or to determine if an accommodation can eliminate the threat.
An employee’s medical information must be kept confidential, including keeping medical information separate from the employee’s personnel file. An employee’s medical records may be disclosed to the company’s legal counsel when the counsel has need of such information. Such instances include when legal counsel is evaluating whether an individual is disabled and when legal counsel is concerned about an individual filing a discrimination charge or lawsuit. Medical departments can allow employer’s legal counsel access to an employee’s medical information because the employee has not engaged the company’s physician as his personal physician, and thus no doctor-patient privilege exists.
An employee’s medical information must not be released to other company departments, such as personnel or management. The ADA only allows such departments to be advised of any necessary restrictions on the work or duties of the employee and any necessary accommodations. Managers should then, with the help of the employer’s personnel and legal departments, be able to determine whether the individual can perform the essential functions of the job with or without reasonable accommodation.
In circumstances where an employer is entitled to require an employee to undergo a medical examination, it may discipline an employee who fails to or refuses to undergo such an examination. An employer may take negative employment action against employees who refuse such medical examinations even when it is highly probable or apparent that the reason for the individual’s work problems is a disability.
The Family and Medical Leave Act (FMLA) allows employees to take up to twelve weeks unpaid leave for, among other things, their own “serious health condition” or that of their child or parent. According to the statute, serious health condition means “an illness, injury, impairment, or physical or mental condition that involves – (A) inpatient care in a hospital, hospice, or residential medial care facility; or (B) continuing treatment by a health care provider.” Minor ailments, such as the common cold, flu, ear aches, upset stomach, minor ulcers, are not serious health conditions. However, if the condition initially appears to be serious and the plaintiff meets the definition of continuing treatment, FMLA coverage may apply despite an ultimate diagnosis of a minor condition.
When an employee seeks FMLA leave, the employer is entitled to ascertain whether the employee does, in fact, have a qualifying serious health condition. An employer may require the employee to provide medical certification from the employee’s health care provider within 15 days of the employer request. The certification must include a description of the serious health condition, the date treatment began or became necessary and the expected duration of the condition or treatment.
The employer need not automatically accept the opinion of the employee’s health care professional as set forth in the medical certification, but can require the employee to be examined by a healthcare professional of its own choosing for a second opinion at the employer’s expense. This second opinion must come from an independent health care professional, i.e., not the medical doctor on staff or someone with whom the employer regularly contracts. If the employee’s health care professional and the employer’s health care professional disagree, the employer may require an examination by a third health care professional (again at the expense of the employer) and the opinion of this third health care professional shall be final and binding.
In the event the employee refuses to provide medical certification, or to submit to examination by a health care provider designated by the employer, the employee’s absence is not protected by the FMLA. Such absence may then be grounds for termination.
Once FMLA leave is granted, an employer may require periodic recertification and/or periodic reports from the employee about the status of the employee’s condition and his intent to return to work. However, an employee who is in full compliance with certification requirements may not be harassed or discouraged by the employer from taking available leave and such harassment could give rise to a legal claim.
At the end of the FMLA leave period, an employer may request a fitness for duty certification before an employee returns to work. The certification must be job-related, consistent with business necessity and applicable to all employees regardless of their reason for taking FMLA leave.
While the law protects the privacy of medical information, employers may gather such information generally during post-offer medical examinations and specifically on an employee who is seeking reasonable accommodation as a disabled individual or an employee who is seeking FMLA leave. But the reach of such inquiry is limited to information which is job-related and consistent with business necessity or information that is necessary to evaluate a claim of a serious health condition.
1For further examples of proper inquiries that employers may make to applicants, consult the EEOC’s Enforcement Guidance of Pre-Employment Inquiries and Medical Examinations Under the Americans with Disabilities Act. For a copy of this publication or any other ADA-related guideline published by the EEOC, call (800)-669-EEOC.