Can they ask that? Requests for medical information by an employer

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By Matthew Denney, staff attorney

When interviewing with or working for a new employer, it can be difficult for anyone to know what information they should reveal and what they should keep private.

Should you disclose a love of Saturday night karaoke performances, and is having an iguana as a pet too “out there” to mention?

But for people with disabilities, the question of what medical information should be disclosed, and if any disclosure is required, can be a difficult one. When can an employer ask about a disability? If they do ask, how much should you reveal?

The Americans with Disabilities Act splits this question into three parts, depending on what stage of the employment process you’re in. The three “stages” are:

1. The period before you’ve been offered a job (during the application and interviewing stage)

2. The period after you’ve been offered a job conditionally if certain requirements are met, but before starting employment, and

3. The period after which you’ve been officially hired without conditions and have become an employee.

Next, I’ll explain the rules for each stage:

Stage 1: Pre-Job Offer – Application and Interviewing

Can My Employer Ask that? No.

During this stage of the employment process, employers are very restricted in terms of what they can ask about as it relates to medical information and disability.

Other prohibited examples may include questions about whether you’ve previously taken workers’ compensation, or whether you take any medications.

They cannot ask you if you have a disability or what your disability is.

They should also not ask you leading questions which would tend to reveal a disability, such as “Why do you use a cane?”

Other prohibited examples may include questions about whether you’ve previously taken workers’ compensation, or whether you take any medications.

If you are asked a prohibited question by an employer during an interview, you can decline to answer it.

Can My Employer Ask That? Yes.

Employers may ask some questions during the pre-job offer stage, or an interview, that would not tend to reveal a disability. A common allowable question is whether or not you would be able to perform the job with or without “reasonable accommodation.”

It is acceptable to answer yes without revealing what accommodations would be needed, if any. If you are aware that an accommodation will be needed to perform the job, it should be requested as soon as possible after you are hired; however, you are not required to request it before being hired.

Other questions which are allowable prior to a job offer are questions about current, but not past, usage of illegal drugs, and questions about general wellness, such as whether you have a cold.

Stage 2: Post-Job Offer But Before Employment Begins

This stage may not apply in all cases; for example, some employers may hire someone immediately after an interview and background check. However, it is common for many employers to offer a job conditionally, with a potential employee first required to pass a drug test or other medical examination.

For example, an employer may require all paramedics they’ve hired to undergo a physical and mental exam, so long as the same requirements apply to everyone.

Following a job offer, an employer may require a prospective employee to undergo medical tests or examinations only if they’re required of all individuals offered a specific job.

For example, an employer may require all paramedics they’ve hired to undergo a physical and mental exam, so long as the same requirements apply to everyone.

Restrictions: “Job-Related and Consistent with Business Necessity”

Employers may also ask about disabilities at this stage. However, there are a couple of rules that restrict this:

Firstly, if the results of an exam or inquiry would “screen out” employees with disabilities – deny them the job because they can’t meet the requirements set by the exam due to their disability – then the requirement must be job-related and consistent with business necessity.

For example, an exam that required potential hires to run a 12-minute mile for passage would tend to “screen out” individuals with mobility impairments. An employer can only use these exam results to do so if running a 12-minute mile is actually necessary to perform the job.

It would be prohibited by the ADA to use this ability as a requirement for a desk job in an office.

You Can Ask for Reasonable Accommodation

Secondly, even if a requirement is job-related and consistent with business necessity, an employee who is unable to meet the required criteria can still ask for a reasonable accommodation at this stage if doing so would allow them to perform the essential functions of the job.

Stage 3: During Employment

After you’ve been hired and started work as an employee, the rules for what an employer may ask you change again. Often, questions about medical disclosure may arise after you’ve made a request for reasonable accommodation, or requested for a medical leave of absence.

At this stage, employers can ask about disabilities and medical information only if it’s job-related and consistent with business necessity.

Objective Evidence: Disability Impacting Performance

And, there are situations in which the employer may be able to do so without the employee initiating the conversation.

For example, if performance issues occur at work that appear to be disability-related, and an employer has a reasonable belief that an employee’s ability to perform the essential functions the job are impaired by a disability or medical condition, then they may ask about a disability. In fact, in situations where a reasonable accommodation would fix the problem, they may be required to do so.

Employers are only allowed to ask questions about a medical condition or disability that appears to be impacting your work or performance.

However, this belief must be based on objective evidence.

For example, an employer cannot assume that a mental health disability may impair an individual’s ability to perform a job, and then request information on it, unless there is first evidence of performance issues that appear to be medically-related.

Limitations

When requests for medical information are job-related and consistent with business necessity, employers are still limited in what they can ask an employee about. Employers are only allowed to ask questions about a medical condition or disability that appears to be impacting your work or performance.

For example, if a job requires lifting 30 pound boxes, and an employee suffers a shoulder injury, an employer may ask for a note from a doctor releasing the employee to work, or to clarify lifting restrictions.

But a shoulder injury would not enable the employer to ask about mental health.

In most cases, specific information about prescription medications is also not within the scope of a medical inquiry, unless specific medications would clearly interfere with job functions.

Requests for Reasonable Accommodation and Medical Leave

If you’ve requested a reasonable accommodation at work after being hired in order to allow you to perform the essential functions of the job, an employer may require you to provide documentation that you:

1) Have a condition that qualifies as a disability under the ADA, and

2) That the reasonable accommodation requested will be necessary and effective to allow you to perform essential functions of the job.

Documentation You’ll Need to Provide

Documentation provided by an employee on a disability is considered sufficient if it addresses the nature, severity, and duration of the disability, the activities that it limits performance of, and the extent to which this performance is limited.

The documentation should also show why the accommodation is needed to address this.

If Your Documentation is Insufficient

If an employer states that the documentation you’ve given is insufficient, they should give you time to get additional information. An employer may require you to see a doctor of their choice only if the requested information cannot be obtained from your doctor in a timely manner.

As with other requests, employees are not required to provide medical information that is unrelated to the disability or impairment for which they’re requesting an accommodation.

Your Right to Restrict a “Blanket” Medical Release

It is possible that employers may request that you sign a “blanket” medical release.

You have the right to restrict the scope of the release to the specific medical condition that relates to the accommodation request.

Lastly, employers may request similar medical information if a medical leave of absence is requested. However, the employer should require all employees to provide this information, and not only those with disabilities.

After a request for medical leave is granted, an employer may request periodic updates only if the leave is indefinite and does not have a “return to work date.”

For example, if an employer grants six weeks of medical leave, they cannot ask for a new doctor’s note after three weeks. However, if a doctor says you may need “8-12 weeks” to recover from an operation, it would be allowable to ask for a medical update after 8 weeks.

Medical leave may be considered a reasonable accommodation under the Americans with Disabilities Act, or up to 12 weeks may be protected under the Oregon Family Leave Act for some employees.

See the link below for more information on the Oregon Family Leave Act and whether or not you may be a covered employee.

What if my Employer is Asking for Prohibited Information?

You have rights under the Americans with Disabilities Act.

If you believe that your employer has violated the rules on prohibited medical inquiries or exams either at the pre-offer, post-offer, or employment stages above, and that this has resulted in employment discrimination — such as a failure to hire you, promote you, or give you the same benefits as other employees — then you may file a complaint of discrimination under the ADA with either the:

  • federal Equal Employment Opportunity Commission (EEOC) or
  • Oregon Bureau of Labor and Industries (BOLI), Civil Rights Division.

In Oregon, complaints should be filed with either the EEOC or BOLI within 300 days of the discriminatory act. For federal employees, the deadline may be shorter and subject to a different procedure.

More informationMatthew wearing a blue shirt smiling at the camera.

Know Your Rights

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