When was the last time someone told you something was "none
of your business"? That's the law's position on
employees' medical conditions. If you ask for details-or
disclose them-you may expose yourself to lawsuits under the
Americans With Disabilities Act (ADA) or common-law
invasion-of-privacy claims.
Consider a recent case at Minnesota Power & Light. A worker
injured her back in a fall while moonlighting at a restaurant,
causing a 10.5 percent disability. When the employee later sought a
transfer to another department, the power company had her evaluated
to see if she could meet the physical demands of the new position.
When the clinic determined the woman could only lift 20 to 35
pounds, the supervisor of the new department, without getting
permission from the woman, told subordinates of her back injury,
lifting restrictions, and the fact that a former supervisor
suspected cognitive deficiencies (which tests had not confirmed).
The woman's co-workers treated her patronizingly. Worse, when
the supervisor learned that the woman had applied for a
letter-carrier job, he informed the U.S. Postal Service about her
back injury and lifting restrictions, which led to her not being
hired. All this led to a bout of depression, psychotherapy and
medication.
The woman charged violation of the ADA and state discrimination
laws. The case was dismissed in a lower court, but the 8th U.S.
Circuit Court of Appeals ruled that the employer had illegally
disclosed confidential medical information, noting that an
applicant or employee need not actually be disabled to be entitled
to the ADA's protection of confidentiality.
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Shush!
Under normal circumstances, employers don't and
shouldn't have access to employees' medical records.
Special circumstances, however, allow you to request documentation
if an employee asks for an ADA accommodation or for leave under the
Family and Medical Leave Act, according to Miami employment
attorney Anne Marie Estevez, a partner with Morgan Lewis &
Bockius LLP. You can also require a medical exam after making a job
offer, if the job requires certain physical abilities. However,
those records should not be kept in employees' personnel
files.
"If you have the luxury of a medical department, keep it as
a filter between the employee and you," says attorney Glenn
Dowd, chair of the employment law department at Day Berry &
Howard in Hartford, Connecticut. Otherwise, maintain separate
medical files so it doesn't appear you're making employment
decisions based on employees' medical conditions. "The
best 'get out of jail free' card is, "I had no idea he
had that condition,'" Dowd says.
In job interviews, the ADA prohibits even asking about
disabilities. In a recently decided case, a man applied for a job
at a Wal-Mart store in New Mexico. The personnel manager asked,
"What current or past medical problems might limit your
ability to do a job?" The applicant revealed that one of his
arms had been amputated. When the personnel manager decided not to
offer him the job, the applicant filed a claim with the Equal
Employment Opportunity Commission, which sued Wal-Mart and won
punitive damages of $150,000.
Gaining Access
There is one circumstance under which an employer has a right to
examine an employee's medical records: when the employee has
made it an issue in a workers' compensation claim or a lawsuit.
Indeed, courts have ruled that the employer can even disclose
medical information about other employees to compare how the
company treated others with the same condition. "Once
litigation has ensued, the employer has free rein to look at any
relevant records," says Estevez. "The rules completely
change."
Good employers are compassionate when employees have medical
problems. But beware of prying into matters the employee-and the
law-considers none of your business.
Steven C. Bahls, dean of Capital University Law School in
Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane
Easter Bahls specializes in business and legal topics.
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