In recent decades, employers have become increasingly interested in their employees’ private lives. One question that comes up often is the extent to which employers can look into and use their employees’ medical information. The COVID-19 pandemic has only made these sorts of inquiries more common, so it is important that you as an employee understand your legal rights and responsibilities.
For starters, the default rule is that your employer cannot ask you about medical conditions or demand medical documentation for just any reason. According to the Americans with Disabilities Act (and specifically, 42 U.S.C. § 12112(d)) your employer can ask about medical conditions (including disabilities) or ask you to undergo a medical exam only if doing so is “job-related and consistent with business necessity.” What does that mean? Generally, your employer must reasonably believe that you have a health condition that impairs your ability to do your job or that poses a direct threat of harm to others. It is entitled only to information on those things. However, this does mean that you employer can ask for a doctor’s note for things like going out on and returning from sick leave.
Also, your employer may ask about your disability if you request an accommodation and your disability is not obvious. In that situation, your employer can ask for evidence that you have a disability and need a particular accommodation (i.e., something showing the nature, severity, and duration of your disability, how it affects your job, and how the accommodation addresses that). While your employer can ask for documentation from your doctor to prove that, it usually cannot demand anything above and beyond that, like your complete medical history.
Otherwise, employers can get your medical information if you provide it voluntarily (like in a health and wellness program), but that means that you cannot be penalized for refusing to provide it.
According to the ADA, your employer is supposed to keep any medical information it has on you confidential and only share it with specific people on a “need to know” basis. Courts that have looked at the issue have generally decided that you do not need to have a disability protected under the ADA for your employer to be required to keep your medical information confidential.
If your employer violates these rules, that may violate ADA. Unfortunately, courts within in the Fifth Circuit—which covers Texas—have been somewhat hostile to employees bringing lawsuits for violations of these medical information rules. For instance, courts have dismissed lawsuits for disclosures that violated the confidentiality rule because the employee could not prove the employer got the information specifically through an authorized medical exam or inquiry. And one court refused to award damages at all because of improper pre-employment medical exams. An important rule of thumb if your employer is violating these rules is that you will need to show exactly how their actions have caused you harm.
The ADA is not the only law that affects when employers can demand medical information. Leave under the Family and Medical Leave Act is protected, but the rules governing medical information under it are a little different than the ADA. If you request FMLA leave, your employer can require that a doctor certify that you (or your family member, if you need leave to care for them) have a medical condition that would qualify for FMLA leave. Your employer can require that your doctor fill out a particular form, and you typically have to provide that certification within fifteen days of when the employer asks. This means that the form must be fully filled out and clear.
If your employer feels that certification is inadequate, it is supposed to tell you in writing and explain what else it needs. Your employer (though not your direct supervisor) can contact your doctor to ask for clarification. However, once you submit a proper certification it cannot keep demanding additional information before granting leave. But, your employer can demand that you get a second or third opinion on whether you have a condition qualifying under the FMLA—though it has to pay for those exams and must provide FMLA leave in the interim. Finally, in most circumstances, while your employer can ask that you renew your certification for leave, you only have to provide recertifications after at least thirty days have passed since your last certification.
If your employer is disregarding these certification rules, that may constitute illegal interference with your rights under the FMLA.
If you believe your employer is violating these rules under the FMLA or ADA, you should contact a Dallas Employment Attorney today.