What Can Employers Legally Ask About Employees' Health ... and How Can You Treat Disclosures Confidentially?

Nicholas Mushayi / Posted On: 15 July 2022 / Updated On: 25 September 2022 / Guest Post / 21

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What Can Employers Legally Ask About Employees' Health ... and How Can You Treat Disclosures Confidentially?



Health is a private, personal subject for most people, and employers need to know about certain conditions and concerns so that on-site safety can be preserved.

 

So what health-related questions can you legally ask team members, and what steps must you take to ensure this information remains confidential? 


Understand the impact of the ADA 

The Americans with Disabilities Act (ADA) made a big difference to the legal rights of businesses to quiz employees on their health.

 

In short, it’s illegal to ask workers to disclose any disabilities or medical conditions they may have at an interview. This is to prevent discrimination in the recruitment process.

 

However, if you decide to offer an applicant a position post-interview, you may implement medical testing so long as it is relevant to the needs of the role in your organization they will be occupying.

 

You cannot test for and discriminate against new hires on the basis of arguably subjective elements like their intelligence levels or their personality, as these do not fall under the category of being a medical exam.

 

Once employed, making health-related queries is again something you can only do if it is strictly related to the job and the business’ operations. It’s a fine line to tread, but there are other ways forward.

 

Discuss with employees how you can keep them safe 

Just because you cannot ask employees directly about their health except for in very specific circumstances, that doesn’t mean they are prohibited from sharing this information with you freely.

 

For example, speaking about allergy issues in the context of safety, and supplying EpiPens to deal with adverse reactions, could encourage those with such vulnerabilities to speak up. And of course, if you need to issue your claim due to a defective EpiPen, having a clear policy on this in place, rather than requiring employees to use their own, will help with things like liability and compensation. 

 

In short, being open and honest about the reasons behind your health-related concerns, rather than making it seem like an unnecessary invasion of privacy, will mean that you don’t have to bend or break any rules and regulations to achieve your safety-related goals.

 

Consider absences 

While it’s generally not legally acceptable to ask for an employee’s medical records, or for information from their physician or another medical professional, there are occasions when this is permitted.

 

Specifically, in the case that an employee has taken sick leave, this is permitted. You could reasonably ask to see a doctor’s note to back up any claims they make about the reasons for their absence, and the team member would be obliged to comply. It’s all part of avoiding absenteeism.

 

A similar state of affairs exists in the case of offering health insurance or dealing with any compensation claims internally.

 

Ensure confidentiality 

There are some best practices for data protection that apply not just to health info disclosures, but more generally to details that are provided to and stored by your business.

 

Making sure to implement access control so that only those who have a legitimate need to use the data is important. In the case, that paper documents are produced, having shredders and confidential waste disposal facilities in-house is helpful. Training employees to reduce human error and minimize the risks of health data being misused must also be a priority.

 

Final thoughts 

Be sensitive and compliant with your questions and discussions around employee health, and you’ll reap the benefits of a happier, safer workforce.

 

Businesses of all sizes must think about health in this context and do their best to avoid falling foul of regulators. 


Nicholas Mushayi
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