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A smart employer will ask you for medical information or a doctor’s note only when absolutely necessary. It’s not in the employer’s interest to know a lot of medical information about its workers. That knowledge could potentially be used against it in a discrimination case. In addition, having sensitive information opens the window for a breach of the employee’s privacy. There are limitations on how, when, and why an employer may ask for this information in some circumstances, but there is still a lot of room for an employer to maneuver.
Two federal employment laws restrict what medical information employees are required to provide.
Americans With Disabilities Act (ADA)
Under the ADA, certain actions are “prohibited”—doing any of these would be considered illegal discrimination. The ADA also lists “acceptable” actions that are allowed.
- Prohibited examinations and inquiries include requiring a medical examination or inquiring about an employee’s health to determine whether the employee is an individual with a disability or about the nature or severity of the disability, unless the examination or inquiry is related to the job and consistent with business necessity.
- Acceptable examinations and inquiries include voluntary medical examinations or voluntary medical histories as part of an employee health program. The employer can also inquire into the ability of an employee to perform job-related functions.
The Equal Employment Opportunity Commission (EEOC) enforces the employment sections of the ADA. Its guidance on this issue states that a disability-related inquiry or medical exam of an employee may be “job-related and consistent with business necessity” when an employer “has 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 (of harm to himself or others)…due to a medical condition.” An employer may also make disability-related inquiries following an employee’s request for reasonable accommodation, where the disability or need for accommodation is not known or obvious. Under specific circumstances, periodic medical examinations and other monitoring may be job-related and consistent with business necessity.
For example, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination in the following circumstances:
- it knows about an employee’s medical condition,
- it observes performance problems that are reasonably connected to the medical condition,
- it receives reliable information from a credible third party that a worker has a medical condition, or
- it observes symptoms that an employee may have a medical condition.
In all of these cases, the employee’s medical condition must be of a type that would either impair his or her ability to perform essential job functions or pose a direct threat of harm to the employee or to others.
The EEOC also provides advice for small businesses. That guidance specifies that the ADA strictly limits the circumstances under which an employer may ask questions about a disability or require medical examinations of employees. Such questions and examinations are only permitted when there is a reasonable belief, based on objective evidence, that an employee will be unable to perform essential job functions or will pose a direct threat of harm because of a medical condition. If the employer has information that reasonably causes it to believe that these concerns are related to the employee’s disability, then medical questions and a medical examination may be appropriate.
Employers may ask employees to provide a doctor’s note to support a request for leave. This documentation is required by other laws.
Family and Medical Leave Act (FMLA)
If you are seeking leave under the FMLA, you may be asked for a certification by your physician explaining the need for the leave and its expected duration. Upon returning to work after FMLA leave, your employer can ask for another certification stating that you’re medically able to work again. This law is enforced by the federal Department of Labor’s Wage and Hour Division. Its employer’s guide to the FMLA provides the following:
- The employer needs to notify employees when a medical certification is required.
- This notification must be included in the written Rights and Responsibilities Notice that the employer gives the employee within five business days of becoming aware of the employee’s need for FMLA leave.
- When requesting a medical certification, the employer must inform the employee of the consequences of failing to provide a complete and sufficient certification.
- If such certification is not received, the employer may turn down the request for the leave.
- The employee needs to provide the requested medical certification within 15 calendar days after the employer’s request, unless it’s not feasible to do so despite the employee’s good faith efforts or unless the employer agrees to allow for more time.
- If the employee makes diligent good faith efforts but is unable to meet the deadline, the employee is entitled to additional time to provide the certification.
- If the employee otherwise doesn’t return the certification in a timely manner, the employer can deny the FMLA leave request until a complete and sufficient certification is provided.
- If there is missing information, the employee must be given a chance to fill in any gaps.
- After that information is provided, the employer may contact the health-care provider only to authenticate and/or clarify the medical certification. The worker’s direct supervisor is not to contact the health-care provider. Any necessary contact should be made by a human resources professional, a leave administrator, or a member of management.
Summing It Up
The ADA only applies in three circumstances:
- the employee has a physical or mental impairment that substantially limits one or more major life activities,
- the employee has a record of such an impairment, or
- the employee is regarded as having such an impairment.
If the employee’s health issue is a temporary condition like the flu or a broken bone, the ADA doesn’t apply. A private employer must also have at least 15 employees to be subject to the ADA.
The FMLA only covers the following employers:
- private companies that have 50 or more employees in at least 20 workweeks in the current or preceding calendar year;
- local, state, or federal government agencies, regardless of size; or
- public or private schools, regardless of size.
To be eligible for FMLA leave, you would need to meet the following conditions:
- you must work for a covered employer,
- you have worked for your employer for at least 12 months,
- you have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and
- you work at a location where the employer has at least 50 employees within 75 miles.
If you don’t qualify for the protections of the ADA or the FMLA, you could still potentially have a discrimination claim. For such a claim, you’d need to show that your employer is singling out certain employees; that it only requires medical notes from those who are older, female, or minorities; and that you have suffered harm as a result of that discrimination. Outside of these situations, an employer has fairly free rein to ask for medical notes.
If you believe you’re being discriminated against because of your disability or FMLA leave status, contact our office. We can talk about what’s going on, advise you about your legal rights, and help you understand how to protect yourself.