Personnel records: Your guide to ADA and FMLA medical confidentiality — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

by Luci L. Nelson, Esq., Ogletree Deakins

Both the ADA and the FMLA have strict requirements for how employers must handle employee’s confidential medical information. HR professionals need to know these rules to comply with both laws—and to avoid expensive legal liability for failing to do so.

Personnel Records: What to Keep, What to Toss

ADA: What, when you can’t ask

The ADA restricts an employer’s use of medical examinations and inquiries in three situations: (1) at the application stage, (2) after individuals have been offered a job and (3) for existing employees.

During the “pre-offer stage,” an employer may not perform a medical examination or ask a job applicant whether he or she has a disability (or the nature and severity of such). Employee screening must generally be based on nonmedical factors, although the ADA permits employers to discuss medical issues with job applicants in three situations.

Employers may:

  1. Conduct pre-employment inquiries about an applicant’s ability to perform job-related functions, as long as they make the same inquiry for all applicants for the particular job
  2. Ask an applicant to demonstrate how he or she would perform the essential functions of the job for which he or she is applying
  3. Ask an applicant with an obvious or known disability what accommodation is required

After a job offer has been made, but before an employee begins work, the ADA permits a medical examination and may condition the offer of employment on the results if:

  • All new employees are subject to the same medical examination, regardless of whether they have a disability
  • The employer keeps the medical information on separate forms, in separate medical files and treats it as a confidential medical record
  • The employer uses the results of the examination only to comply with the ADA

Using ADA information

The ADA allows employers to disclose medical information to supervisors who need to know the necessary restrictions on the employee’s duties and necessary accommodations. Information may be provided to first aid and safety personnel in case it’s necessary to provide emergency treatment. It’s also permitted to disclose medical information to government officials investigating ADA compliance.

It’s illegal to withdraw an employment offer based on the information obtained in a medical examination unless it’s job-related or necessary for the conduct of the employer’s business. The job offer may also be withdrawn if the employee’s disability would constitute a “direct threat” to the health and safety of the employee or others and no reasonable accommodation is available.

The ADA prohibits requiring existing employees to submit to a medical examination or ask them whether they have disabilities (or ask about the nature or severity of a disability), unless the examination or inquiry relates to the functions of the employee’s job and consistent with business necessity.

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FMLA: Obvious tension with ADA

Employees are eligible for FMLA leave if they have “a serious health condition that makes the employee unable to perform the functions of the position.”

The FMLA requires employees to provide a copy of certification of the medical condition issued by a health care provider. The medical certification must state the date on which the serious health condition began, the probable duration of the condition and the appropriate medical facts regarding the condition.

Because employers are permitted to inquire about an employee’s serious health condition to determine leave eligibility, there is obvious tension between the FMLA and the restrictions on medical inquiries under the ADA for existing employees. Suppose an employee’s “serious health condition” is also considered a disability under the ADA. What happens if the employer’s request for a medical certification under the FMLA requires more information than the employer could lawfully obtain under the ADA?

The U.S. Department of Labor has created Form WH-380 to help employees obtain medical certification. If the FMLA inquiry relates to the information on Form WH-380, an employer is permitted to ask why an employee is requesting time off. As long as the information request concerns job-related issues, such questions are consistent with the ADA “business necessity” exception.

Returning from FMLA leave

Following FMLA leave, the employer may seek “fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave.” Employers must uniformly request such certification of all “similarly-situated employees—those in the same occupation or with the same serious health condition.

The ADA requires that any return-to-work medical exams be job-related and consistent with business necessity. For example, an employer may require a warehouse laborer, whose back impairment affects his ability to lift, to be examined by an orthopedist. The certification only needs to be a simple statement of the employee’s ability to return to work.

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