When and what can employers ask employees about their health — and how do you do it during COVID-19 while complying with laws that safeguard medical privacy?
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What questions can you ask employees about their health?

Few of us can remember a time when health issues impacted the workplace more than they do right now. An employer’s need to understand whether an employee is sick or has underlying medical conditions has never been quite as important. The COVID-19 virus has some companies struggling to survive — while others are staffing up to meet peak demand or reopen. Wherever your business stands, keeping everyone safe is probably a priority, but there are some limitations to what you can ask an employee about their health.

 

Before this crisis, an October 2019 survey from staffing agency Robert Half reported that 57% of employees reported that they sometimes go to work while sick and 33% always go to work while sick. That finding means that as many as 90% of workers went to work even when they were feeling under the weather. People are being more careful now, but there’s also a lot more potential risk.

 

So, how can you ask employees about potential medical conditions without violating laws that protect their privacy? First, make sure you understand what’s required by the Americans with Disabilities Act (ADA). Under this law, which applies to businesses with 15 or more employees, there are strict rules about an employer’s ability to inquire about a disability, ask employees about their health, or require medical exams.

 

Let’s take a look at three types of employee interactions where you might be thinking about asking medical questions.

 

Health questions during interviews

Historically, employers were able to ask applicants to provide information concerning their physical or mental condition. However, this information was sometimes used to exclude and discriminate against certain individuals. In response to this problem, the ADA developed guidance intended to make sure job applicants are selected for a position based on merit alone — while also protecting the rights of employers to ensure that individuals in the workplace can effectively perform the essential functions of their jobs.

 

As part of the interview process, you are prohibited from making any disability-related inquiries or medical examinations of candidates — even if they seem related to the job. Questions about prior or current illnesses, any medications or medical treatments, substance abuse, disabilities, or Workers’ Compensation claims are illegal. So are all questions about the applicant’s family medical issues.

 

Questions when making an offer of employment

The ADA laws, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967 prohibit the use of discriminatory employment tests and selection procedures. However, these laws do allow for testing that’s “related to and consistent with business necessity”.

 

It is legal to require a job-relevant medical exam — or even a carefully designed physical abilities test — before putting someone on the payroll. Make sure that any tests you use are designed to test the essential functions of the job, and that they are designed to be accurate predictors of successful future job performance.

 

Note that tests measuring things like aptitude, intelligence, or personality traits are not considered to be medical examinations under the ADA. On the other hand, something like mandatory drug testing is acceptable, as long as it’s required of all applicants for similar positions.

 

The ADA states that if you require a medical exam, you must:

 

  • Administer the exam only after a conditional offer of employment has been made — not during the interview process
  • Apply the exam consistently and not just for selected candidates
  • Keep all medical documentation secure and separate from the employee’s other records
  • Find a reasonable accommodation — if one is available — when a candidate’s disability makes it impossible to perform the job’s essential functions

 

Can you postpone the start date or withdraw a job offer because the individual is at higher risk from COVID-19? 

No, being at greater risk does not justify unilaterally postponing their start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone their first day.

 

Can you check an employee’s health during the COVID-19 crisis?

The Equal Employment Opportunity Commission (EEOC) has confirmed that employers are allowed to take employees’ temperatures as they come into work, even though that counts as a medical exam under the ADA.

 

The EEOC has also said that organizations are currently permitted to ask employees physically entering the workplace if they have symptoms of COVID-19, a diagnosis of COVID-19, or if they have been tested.

 

If employers want to know if an employee has been exposed, they can consider asking if they have had contact with anyone diagnosed with the virus or someone showing symptoms.

 

Can you screen applicants for symptoms of COVID-19 when you are hiring?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer — as long as it does so for all new employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.

 

Can an employer ask employees to disclose whether they have any underlying health conditions?

Generally, no. Asking an employee to disclose any chronic or underlying health conditions may require them to disclose the existence of a disability. However, during the global pandemic, it has been suggested that ADA-covered employers may reasonably conclude that employees will face a direct threat if they contract COVID-19. In this case, it’s best to seek legal guidance on how to best proceed.

 

Remember, all medical information should be treated as confidential, so if someone in your workplace is infected, employers should not reveal that person’s name to other employees. Disclosures like this are not permitted by the ADA nor recommended by the CDC. Recent updates from the EEOC have said that employers may disclose the name of an employee that tests positive for COVID-19 to a public health agency.

 

Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. So, they should follow the most current information on maintaining workplace safety from their local jurisdictions. OSHA has also released guidance on preparing workplaces for COVID-19.

 

Health questions relating to job safety and performance

The ADA says employers may sometimes ask about health or disability-related issues and require medical examinations — but only if they are “job-related and consistent with business necessity”.

 

If an employee is having trouble with any essential job tasks, such as carrying objects, walking up or down the stairs, talking with customers, or wearing mandatory safety equipment, employers can ask why. Ditto if the employee has an accident. If the employee discloses that the problem is health-related — or if you reasonably suspect that the problem may be health-related — you can require a physical exam and doctor’s evaluation.

 

This evaluation can be used to determine the employee’s fitness or whether there’s a disability that you can reasonably accommodate.

 

After an absence

When employees return to work after a serious illness or injury, you may want some assurance that the employee is able to resume regular work duties. That may include certainty that the employee is no longer contagious or that their injury has healed so they can return to their regular duties. You can require a doctor’s note to document that the employee is now safe to do the job.

 

Can I require a doctor’s note if an employee is returning from an absence related to COVID-19?

Yes, the EEOC has stated that an employer may require an employee who was out sick as a result of COVID-19 to provide a doctor’s note that certifies their ability to safely return to work.

 

But, because doctors and other health care professionals are very busy during the pandemic, some flexibility may be required when it comes to this kind of documentation.

 

Can an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

 

Can an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

 

Health questions to avoid

Because medical questions are so personal – and violations of an employee’s privacy are potentially legally actionable – be sure to avoid these common mistakes:

 

  • Don’t ask an applicant or employee if she is pregnant. Pregnancy is a medical condition that can never be considered in making a hiring or firing decision.
  • Don’t ask an employee a broad question about their impairments,  such as “What impairments do you have?”  Health questions like these are not narrowly tailored to your need to know about whether an employee needs a specific accommodation, and they are likely to elicit private information about a disability.
  • Don’t ask an employee to provide medical documentation regarding their disability.
  • Never ask an employee’s co-worker, family member, doctor, or another person about an employee’s disability.
  • Don’t ask about an employee’s genetic information.
  • Don’t ask about an employee’s prior workers’ compensation claim history.
  • Don’t  ask an employee whether they are currently taking any prescription drugs or medications, whether they have taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications.
  • Never leave any medical records lying around. They must be kept secure in a locked file.

 

Please note that many well-intentioned questions can run afoul of anti-discrimination laws. For example, an employer may want to ask their team about food allergies so you can plan team meals. Or it might seem friendly to inquire about whether a job applicant plans to have children. While you can have conversations about an employee’s well-being or family, these questions can be stepping into private medical information. Let’s take a look at how that works.

 

The medical conditions you can ask about

It’s considerate to be concerned about your employees’ health. To that end, you can:

 

  • Ask generally about an employee’s well being (e.g. “How are you?”)
  • Ask an employee who looks tired or ill if they are feeling okay
  • Ask an employee about nondisability-related impairments (e.g. “How did you break your leg?”)
  • Ask an employee whether they are using alcohol or drugs
  • Ask an employee who has disclosed she is pregnant how she is feeling or when her baby is due
  • Ask an employee to provide the name and telephone number of a person to contact in case of a medical emergency
  • Ask an employee whether they can perform job functions

 

And, in a limited way, you may ask an employee about their medical condition in order to make appropriate accommodations. However, it’s probably best to consult with an employment law attorney to understand how to approach this particular situation.

 

The bottom line: Nothing in the ADA or privacy laws keeps you from checking in on how your employees feel. Is your employee sick, do they need to go home, and how things are going are all fine things to ask about. Just be sure to respect their privacy and to avoid asking questions that may require them to reveal sensitive information when it’s not necessary to help them perform their job.

 

This article is for informational purposes only and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors for formal consultation.

 

Howard Winkler writes and consults on HR and Ethics. He has led for more than 30 years in talent management, employee relations, HR strategy, ethics, and compliance. His board-level service includes the HR Certification Institute, the SHRM Foundation, and the Council of Better Business Bureaus.

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