Font size: bigger | smaller

Medical Information and the ADA: Inquiries and Confidentiality

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

Under the Americans with Disabilities Act (ADA), an employer or potential employer is limited in what questions it can ask related to disability. This includes limiting an employer's ability to conduct medial examinations. The ADA also requires an employer to protect the medical confidentiality of job applicants and employees.

There are different rules about medical inquiries for each of the three stages of employment: before a job offer is made; after an offer is made but before employment begins; and after employment begins.

I. Medical inquiries before a job offer is made

Employers are limited in the kinds of medical information they can request from job applicants. Employers may not require applicants to undergo a medical or psychological exam and may not ask questions about a person's disability before making a job offer. Employers may whether job applicants can perform essential duties of the job.

Employers may not ask if an applicant: has a physical, intellectual or psychological disability; ever filed for workers' compensation; takes medication; is receiving medical or psychiatric treatment; has ever received medical or psychiatric treatment; or has ever spent the night in the hospital.

Employers may ask questions that are directly related to the ability to do the job, such as whether the applicant can: lift a certain weight; type a certain speed; alphabetize information; put items in numerical order; etc.

If a job applicant volunteers information about an invisible disability or if a disability is obvious, such as the applicant uses a visible prosthetic limb, the employer may ask questions regarding the need for reasonable accommodation or what type of accommodation may be needed.

II. Medical inquiries after an offer is made but before employment begins

After an employer has offered a job to an applicant, the employer may then ask questions regarding the applicant's health, including questions regarding disability. The employer may require a medical examination. However, all applicants must be asked the same questions and must be required to take the same medical exam.

After an employer receives medical information from all applicants to whom it extended job offers, the employer may ask specific questions of specific individuals if the questions are medically related to previously-obtained medical information.

III. Medical inquiries after employment begins

Employers may ask a current employee questions regarding the employee's medical condition, or may require the employee to submit to a medical exam. However, to do so, the employer has to have reason to believe the employee’s medical condition may be a direct threat to the employee’s safety or to others, or must believe there is a medical basis for a change in the employee’s job performance. This belief must be based on objective evidence.

IV. Medical confidentiality

An employer must keep all medical information separate from general personnel files, and treat it as a separate, confidential medical record.

The ADA's confidentiality requirements include limited exceptions. An employer may disclose an employee’s medical condition or disability when necessary to provide reasonable accommodation; when first aid or safety personnel need to be aware of an objective potential for the need for emergency treatment; or when an employee will require assistance if there is an emergency on the job, such as a far requiring evacuation. An employer may also disclose medical information to agencies investigating the employer's compliance with the ADA and other related laws, and may disclose medical information when required for insurance claim processing.

An employer is specifically prohibited from telling coworkers that an employee has a disability or is receiving reasonable accommodation.

Contact Us

Spencer Johnson McCammon LLP
2727 Camino del Rio South
Suite 140
San Diego, CA 92108
Phone: (619) 233-1313

Spencer Johnson McCammon Weekly

Spencer Johnson McCammon Weekly

Topic of the Week

Sexual Harassment: Legal Standards

We hear a lot in the news about pervasive sexual harassment in the workplace and people are starting to call it out more and more in the media. But we don't hear much about what to do when you are being sexually harassed, or how the law protects you. Read

Read more...

Blog of the Week

One year after the Weinstein story broke, sexual harassment claims are up 12% nationwide

On Friday, the Equal Employment Opportunities Commission reported that sexual harassment claims were up 12 percent this year, compared with the 2017 fiscal year.

Thought for the Week

"Kavanaugh tends to interpret narrowly the limits that work law places on employers, resulting in judicial and agency deference to employers’ decisions."

–Professor Charlotte Garden, Seattle University School of Law

List of the Week

from Workplace Fairness

 Top Hiring and Classification Searches this week: 

  • Non-compete agreements
  • Independant contractors
  • Arbitration agreements
  • Undocumented workers
  • Non-disclosure agreements

 

Top Five News Headlines

  1. How Companies Can Build Better Sexual Harassment Policies
  2. New York Sexual Harassment Law Deadline Has Employers in a Hurry
  3. Starbucks now offering backup daycare benefit to US workers
  4. AFL-CIO's Trumka Is Optimistic About the Midterms
  5. Study: Lingering illnesses can trouble women for years after assault, workplace harassment