At various points in the employment process, employers may ask medical, health or disability-related questions of employees or prospective employees. This process is referred to as “medical inquiry.” The Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA) and state Workers’ Compensation laws limit when and why employers may ask for such information, making it important that managers, supervisors and others within organizations understand when medical inquiry is and is not allowed.
When is it OK to Make a Disability-Related Inquiry or Conduct a Medical Examination?
Before a job offer has been made, the ADA prohibits all disability-related inquiries and medical exams even if these are related to the job. However, an employer may ask applicants to “self-identify” as individuals with disabilities for purposes of its affirmative action program. Most Federal contractors are required to invite applicants to self-identify as a person with a disability. Generally, when conducting interviews and screening, employers should only focus on candidates’ skills and qualifications.
Tests to determine the current illegal use of drugs and physical agility/fitness tests are not considered medical examinations under the ADA and, therefore, can be conducted anytime – including pre-offer.
It is important to note that each state has its own Workers’ Compensation laws. These laws may interact with medical inquiries conducted under ADA or FMLA in certain circumstances. Employers should consult their state department of labor for more information.
After a job offer has been made, but prior to starting the job, disability-related questions and medical exams are permissible if they are given to all employees in the same job category. Common examples include:
- Screenings for communicable diseases in health and childcare settings.
- Tests and examinations required by federal law.
- Invitations to voluntarily self-identify as a person with a disability (when all applicants are given the same invitation).
After an employee begins working, disability-related inquiries may only be made or medical examinations required in circumstances that are job-related and consistent with business necessity. For example, employers may make a disability-related inquiry if an employee requests a reasonable accommodation or to take leave under the FMLA.
Employers are entitled to make additional inquiries regarding the employee’s medical status if needed to verify the existence of the disability or certify the requested leave. However, employers should take care to obtain only as much medical information as absolutely necessary and to protect that information once obtained. It is important to note that the ADA does not require an employer to provide leave as an accommodation if there is another effective accommodation (e.g., telework or a modified schedule) whereas the FMLA requires employers to grant leave without question once a qualifying event has been verified.
|Reasonable Accommodation under the Americans with Disabilities Act (ADA)||Family and Medical Leave Act FMLA)|
|When is inquiry OK?||When a conditional offer of employment has been made, but prior to the start of employment when the tests are given to all employees in the same job category|
When a reasonable accommodation is requested
During the course of employment when an employer has a reasonable belief that an employee will be unable to perform an essential function of the job or may pose a direct threat because of a medical condition
|Medical inquiry is necessary to “certify” leave under FMLA, after an employee makes a request for leave related to a serious medical condition. The employee has 15 days to produce documentation, even if the leave has already commenced.|
|When is it prohibited?||Pre-employment, or when the information is not job-related and consistent with business necessity after employment commences.||Not all FMLA leave requests are related to the serious illness of an employee. For example, medical certification is not required for births or adoptions.|
|Who provides information?||The employee may submit the requisite information or allow employer to obtain the information from a qualified professional who may not necessarily be a medical doctor. For example; a licensed therapist, a vocational rehabilitation counselor or a nurse practitioner may submit documentation.||Health care professionals who can certify the need for employee leave. Employers may ask for multiple medical opinions under certain conditions.|
|Who has access to the information?||The ADA requires employers to keep all medical information confidential. Direct supervisors/safety personnel should only have access to information on a need-know-basis.||Once obtained, the information should be treated as a confidential medical file, separate from other personnel records.|
What is a Disability-Related Inquiry?
According to EEOC guidance, a disability-inquiry is a question that is likely to elicit information about a disability, such as:
- Asking an employee whether she or he has (or ever had) a disability or how he or she became disabled or inquiring about the nature or severity of the disability.
- Asking an employee to provide medical documentation regarding hisor her disability.
- Asking an employee’s co-worker, family member, doctor, or another person about an employee’s disability.
- Asking about an employee’s genetic information (e.g., family medical history).
- Asking about an employee’s prior workers’ compensation history.
- Asking an employee whether he or she currently is taking any prescription drugs or medications, whether he or she has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications.
- Asking an employee a broad question about his or her impairments (e.g., what impairments do you have?)
The Benefits of a Centralized Process for Medical Inquiry
Creating a centralized process for conducting medical inquiries can help ensure that there is a single point of contact, and a single repository for all confidential information related to the health status of employees. The person or persons assigned to this role would facilitate processes and decisions related to:
- Who should have access to information, and how much access is necessary (i.e., how much does the supervisor need to know?)
- Maintaining the confidentially of information in an access-restricted location.
- Avoiding violations of the Genetic Information Nondiscrimination Act (GINA) by monitoring for compliance throughout the inquiry process.
- Establishing fair and efficient processes to create a business environment where employees feel safe to disclose medical situations before work-related problems arise.