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Asking your employees medical questions: What’s legal, what’s not?

11/12/2015

The ADA states that employers “shall not make inquiries of an employee as to whether such em­­ployee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

Only disability-related inquiries and medical examinations are subject to the ADA’s restrictions. So the key issue that must be addressed first is whether the employer’s question is a “disability-related inquiry.”

EEOC guidance says a disability-related inquiry is one “that is likely to elicit information about a dis­­ability.”

Unlawful inquiries

The EEOC says such unlawful inquiries include:

• Asking employees whether they have (or ever had) a disability or inquiring about the nature or severity of an employee’s disability

• Asking employees to provide medical documentation regarding the disability

• Asking co-workers, family members, doctors or others about an em­ployee’s disability

• Asking about employees’ genetic information

• Asking about employees’ prior workers’ comp history

• Asking employees whether they take prescription drugs

• Asking employees broad questions about their impairments that are likely to elicit disability info (e.g., What impairments do you have?).

Lawful inquiries

On the flip side, questions that are not likely to elicit information about a disability are legal under the ADA.

Examples include:

• Asking generally about employees’ well being (e.g., How are you?)

• Asking employees who look tired or ill if they are feeling OK

• Asking how employees are doing following the death of a loved one

• Asking employees about nondisability related impairments (e.g., How did you break your leg?)

• Asking employees whether they can perform job functions

• Asking employees whether they have been drinking or about their current use of illegal drugs

• Asking a pregnant employee how she is feeling or when her baby is due

• Asking employees to provide emergency contact information.

Note: These restrictions on inquiries apply to all employees, not just those with disabilities. So any employee has a right to challenge a disability-related inquiry that is not job-related and consistent with business necessity.

 

EEOC: What's considered 'job-related' and 'necessary'?

The EEOC says disability-related questions asked of employees must be “job-related and consistent with business necessity” to be legal.

But what does that mean? The EEOC says an employer must have “a reasonable belief, based on objective evidence, that:

“(1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or

“(2) an employee will pose a direct threat due to a medical condition.

“Disability-related inquiries that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity. Also, periodic medical examinations and other monitoring under specific circumstances may be job-related.”