The Use of Your Medical Information After Employment
The Americans with Disabilities Act is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. The Rehabilitation Act provides the same protections related to federal employment. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws apply to smaller employers and may provide protections in addition to those available under the ADA. The U.S. Equal Employment Opportunity Commission enforces the employment provisions of the ADA.
The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. An employer may ask questions or require an employee to have a medical examination only when it has a legitimate reason to believe that cancer, or some other medical condition, may be affecting the employee’s ability to do his or her job, or to do so safely.
Sometimes an employer will be able to ask for medical information because it knows that the person has cancer and reasonably believes that the cancer itself, its treatment, and/or side effects are causing the employee’s performance problems. At other times, an employer may ask for medical information when it has observed symptoms, such as fatigue or difficulties with memory or concentration, or has received reliable information from someone else (e.g., a family member or coworker), indicating that the employee may have a medical condition that is causing performance problems.
An employer must keep confidential any medical information it learns about an applicant or employee.
If the employer has a reasonable belief that the employee may be unable to perform his or her job or may pose a direct threat to him or herself or others, the employer may ask for medical information. However, the employer may obtain only the information needed to make an assessment of the employee’s present ability to perform his or her job and to do so safely.
In addition, an employer may ask an employee with cancer to provide the following:
- information, including reasonable documentation, explaining the need for a reasonable accommodation requested because of cancer;
- medical information that is part of a voluntary wellness program;
- justification for the use of sick leave by providing a doctor’s note or other explanation, as long as all employees who use sick leave are required to do the same and the information requested does not exceed what is necessary to verify that sick leave is being used appropriately; and
- periodic updates on his or her condition if the employee has not provided an exact or fairly specific date of return, or where the employee requests leave in excess of that which the employer already has granted.
Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health.
Keeping Medical Information
With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose that an employee has cancer:
- to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions;
- to first aid and safety personnel if an employee would need emergency treatment or require some other assistance at work;
- to individuals investigating compliance with the ADA and similar state and local laws; and
- as needed for workers’ compensation or insurance purposes (for example, to process a claim).
An employer may not explain to other employees that their coworker is allowed to do something that generally is not permitted (such as work at home or take periodic rest breaks) because he or she has cancer. Telling coworkers that an employee is receiving a reasonable accommodation amounts to a disclosure of the employee’s disability. Although the employee’s coworkers and others in the workplace may be concerned about the employee’s health, an employer may not reveal that the employee has cancer. In addition, an employer also may not explain to other employees why an employee with cancer has been absent from work.
♦ ♦ ♦ ♦ ♦
Source: The U.S. Equal Employment Opportunity Commission
This article was originally published in Coping® with Cancer magazine, November/December 2007.