The Americans with Disabilities Act (ADA) entitles eligible employees with a disability to receive reasonable accommodations that allow them to perform the essential functions of their job. Employees may be eligible for a workplace accommodation for pregnancy, ADHD, autism spectrum disorder, PTSD, and many other conditions.
But there’s more to the story than simply asking for an accommodation and receiving it. Both parties may need to navigate the ADA interactive process to choose a suitable accommodation. Along the way, you’ll need to take steps to ensure the employee’s privacy by adhering to the ADA confidentiality requirements.
Here’s what employers need to know about ADA confidentiality requirements, and how you can go about protecting employees’ confidential medical information.
The Americans with Disabilities Act (ADA) can come into play at any number of stages of the employee lifecycle. Maybe a new employee disclosed their disability during the hiring process, or maybe you learned about an ongoing medical condition during the return-to-work process following an illness or workplace injury.
As an employer, you may have questions about their disability and what kind of impact it will have on their ability to perform their job. But there are strict limitations on what type of information you can request and what you can do with that information.
Here are the three main ADA confidentiality requirements for employers to follow.
The first step to honoring the ADA confidentiality requirements is to limit your requests to information that is necessary and relevant. For example, the employer can ask for information about the employee’s ability to perform their essential job functions, but should avoid asking questions about the disability that aren’t job-related.
This extends to medical examinations: according to the Equal Employment Opportunity Commission (EEOC.gov), employers can’t require a medical examination as a condition of employment or to find out general information about an employee’s disability, only to determine what accommodations they need to fulfill their essential job functions.
One of the surefire ways to violate the ADA confidentiality requirements is to store confidential medical records in the employee’s personnel file. If you’ve requested medical information during the interactive process, store it separately from other employment files to ensure the confidentiality of medical information.
Only members of your human resources team and other relevant personnel should have access to it; avoid sharing confidential information with coworkers, even if an employee’s impairment is open knowledge in the workplace.
Sometimes an employee’s information needs to be shared with other parties; after all, the purpose of collecting it is to ascertain any work restrictions and provide necessary accommodations related to their disability. Here are three cases in which you might need to disclose information as a matter of law or business necessity:
Sometimes, finding an ADA reasonable accommodation is easy, but in other cases, you may need to request information from a healthcare provider. But when can you request employee medical information while meeting the ADA confidentiality requirements?
Here’s what you can and can’t ask at different stages of the employee lifecycle.
Employers need to be careful when discussing a disability during the hiring process to avoid the risk of employment discrimination. According to the EEOC, the employer can’t ask about the “nature or severity” of a disability, only whether the candidate can perform the essential functions of the job, “with or without” reasonable accommodation.
Along the same lines, the employer can’t require a medical inquiry before making a job offer, but they can “condition the offer on … passing a required medical examination … if all entering employees for that job category have to take the examination.”
If an employee discloses a disability and makes an ADA accommodation request during the course of employment, both parties need to engage in the ADA interactive process. The employer may need to confirm that impairment qualifies as a disability under the ADA — i.e., that it impairs one or more major life activities.
The employer can only refuse an accommodation if it would cause undue hardship to the employer, or if doing so would cause a direct threat to workplace safety; that is, if the employee is unable to meet the safety requirements of the job.
An employer may first learn about an employee’s disability when the employee returns to work following a leave of absence to recover from an illness or injury. For example, they may be asked to provide a fitness-for-duty certificate during the return-to-work process that outlines any necessary restrictions on their job functions.
This information should be stored in a secure format and handled according to ADA confidentiality requirements to protect the employee’s privacy.
The ADA confidentiality requirements only apply to information related to an employee’s disability. Employee health information that isn’t related to their disability, or that they’ve disclosed voluntarily, isn’t subject to the same restrictions. For example, an employee may make a voluntary disclosure through an employee wellness program.
However, such information may still be subject to confidentiality provisions under other employment laws and workplace regulations.
The Family and Medical Leave Act (FMLA) entitles employees to 12 weeks of unpaid leave following an injury, illness, the birth of a child, and other qualifying situations. In some cases, an employee may be eligible for both the ADA and FMLA.
FMLA confidentiality rules are the same as the ADA confidentiality requirements, but FMLA leave may cover situations that aren’t specifically related to a disability. You’ll need to use separate forms and retain separate medical files to substantiate FMLA leave and navigate the return-to-work process.
Covered entities, including health care providers, health insurance companies, and their business associates, must abide by the Health Insurance Portability and Accountability Act (HIPAA), which protects the confidentiality of personal health information.
HIPAA doesn’t apply to employment records, so employers aren’t bound by HIPAA when handling employee medical information. However, they should keep HIPAA in mind when requesting confidential information from healthcare providers and avoid doing so without prior authorization from the employee.
Employers are allowed to ask for medical information when an employee requests an accommodation under the ADA. However, they’re obligated to store this information separately from other personnel files and avoid sharing it with coworkers. Asking for medical information unrelated to the essential functions of the job could open an employer up to accusations of disability discrimination.
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