With the recent changes to the Americans with Disabilities Act, there’s some confusion about disabled employees’ privacy rights — and HR’s obligation to protect those rights.
ADA’s privacy provisions — and an employer’s obligations — kick in at three stages:
- When someone applies for a job.
- When someone is offered a job.
- While someone is employed.
When someone applies for a job, or the “pre-offer stage.” You can’t make requests for medical exams or inquire about disabilities. The ADA does allow you to discuss medical-related issues at this stage in three situations:
- You can ask if the applicant has the ability to perform key functions of the job — such as, say, being able to lift items of a certain weight. That type of question is OK as long as you ask it of all applicants, disabled and nondisabled.
- You can ask the applicant to actually perform the function — as a “test” — to verify fitness for the job. Again, that’s OK as long as all applicants are asked to perform the function.
- If a disability is obvious — such as an applicant who uses a wheelchair — or if the applicant volunteers information about a disability, you can ask if any accommodation would be required by the applicant.
When someone is offered the job. You can require a medical exam, and you can make passing the exam a precondition for employment. Note two conditions:
- Once more, the medical-exam requirement must apply to all potential employees, not just disabled ones.
- The results of the medical exam must be kept in a separate, confidential file. You can disclose the information of that file to (a) supervisors who need to know the employee’s restrictions and accommodations, (b) first-aid and safety people who perform emergency treatment, and (c) government officials who are investigating ADA compliance.
Can you withdraw an offer based on the results of the exam? Generally, no, except if you can show that a disability presents a “direct threat” to the safety of the person or co-workers, or where no reasonable accommodation exists for the disability.
While someone is employed. The ADA prohibits you from requiring someone already employed to have a medical exam or to answer questions about a disability unless the exam and questions are related to the functions of the job. The confidentiality provisions of the results are the same as those for the post-offer exam — separate files accessed only by supervisors and first-aid personnel who need to know.
Click here for ADA Q&As about privacy and other provisions.