Do i have to disclose medical information to my employer

The outbreak of the novel coronavirus (COVID-19) presents challenging medical privacy issues for employers. Employers must observe their employees’ continued legal right to privacy—including under the Americans with Disabilities Act (ADA), HIPAA, and/or relevant state and local laws—while maintaining a safe and healthy workplace. Below are some privacy guidelines for employers to consider with respect to the coronavirus outbreak.

Medical Privacy Obligations Under the ADA

The ADA and similar state and local laws prohibit discrimination against individuals with disabilities or perceived disabilities, and provide employees with guaranteed rights to medical privacy. Although COVID-19 is thought to be a temporary illness rather than a disability, it likely implicates anti-discrimination laws due to the possibility for resulting discrimination. Thus, employers should continue to abide by the ADA’s privacy obligations.

The ADA restricts employers from inquiring about employees’ medical history and specific medical conditions. The law also regulates when employers may request medical examinations of their employees.

However, the coronavirus outbreak understandably raises new questions for employers. For example, how much information can an employer seek from an employee who shows signs of illness or calls in sick? Can employers tell their workforce if they learn that an individual has been infected? Can employers require individuals who were in potential contact with an infected employee to stay home or be tested for the illness?

Fortunately, the Equal Employment Opportunity Commission (EEOC) maintains specialized guidelines for an influenza pandemic, which provides direction on how employers can avoid violating the ADA while taking precautions to keep their workforce healthy. In relevant part, employers are permitted to:

• Ask employees if they are experiencing influenza-like symptoms, which is described as fever or chills and a cough or sore throat;
• Send employees home if they are exhibiting “influenza-like symptoms;
• Ask employees about exposure to pandemic influenza if they are returning from travel to an area specified as at-risk by the CDC.

However, employers must still keep information confidential and private, ensuring they:

• Maintain any medical information obtained from their employees as a confidential medical record, separate from their standard personnel file;
• Limit inquires to actual symptoms of illness or risk of exposure;
• Do not ask their employees if they have a medical condition that would make them more susceptible to the virus.

Moreover, if an employee is confirmed to have contracted COVID-19, the CDC also specifically instructs that companies inform fellow employees of their potential exposure to the virus. However, they must still remain mindful of the individual’s medical privacy and maintain confidentiality.

HIPAA Privacy

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule requires covered entities to protect individuals’ medical records and other personal health information. Generally, covered entities only include health plans and healthcare providers. However, this may also implicate employers if they learn of medical information, conditions, or diagnoses regarding their employees through a covered health plan. Thus, in an abundance of caution, employers should treat all employee medical information, such as the identity of infected individuals, as confidential with the protections afforded by HIPAA.

Nonetheless, the U.S. Department of Health and Human Services has advised that covered entities may sometimes disclose confidential medical information to a public health authority that is working in its capacity to ensure public health and safety. In such cases, the disclosure should be limited, tailored to accomplish the purpose of the request. This may permit covered entities and employers to inform the CDC of otherwise private medical information regarding employees when the disclosure is necessary.

Navigating employee privacy in the face of a global pandemic is challenging. The guidelines above permit employers to ask narrowly tailored questions, and encourage their workers to seek medical attention or go home if they are exhibiting signs of illness. However, employers must be careful to handle all medical information in a manner that is consistent with the ADA, HIPAA, and relevant local and state laws, including limiting the focus of inquiries and preserving confidential medical information to the extent possible.

Even at surface level, medical conditions can seem complicated and daunting to employers. Fears of how they might affect an employee’s ability to work or what they could cost the business in reasonable adjustments needing to be made, and so businesses understandebly want to know if new hires have any medical issues ahead of time. However, for those employees who have medical conditions, it can be a confronting idea to have to disclose such personal information. 

Medical conditions are classified as a protected characteristic, and employers are not allowed to discriminate against an employee based on their medical requirements. Employers must understand what is required of them in order to avoid breaking the law.

While it’s important to abide by the law, medical conditions can be a difficult topic to approach, and so it is equally as important for employers to be sensitive to the needs of each employee – beyond what is required of them by law.

Just because you are ‘technically’ allowed to ask a certain question, doesn’t necessarily mean that you have to. And if it is a necessity, you should be mindful of the way you ask it. Tact can go a long way to keeping communication as open as possible.

So, What Can an Employer Ask about an Employee’s Medical Condition?

Employers can ask questions that help them to determine if they need to make reasonable adjustments. For example, this might include:

• An adapted working environment.
• Flexibiliy in the working day, i.e. more frequent breaks or the ability to work remotely if needed.
• Extra resources to help perform their job role.

Questions can be asked for monitoring purposes. This might include questions relating to recent absences, or how the employee is finding their currently working arrangement.

An employer can ask about a medical condition if it’s thought that the condition might affect the employee’s ability to do their job. For example, the British Armed Forces cannot employ individuals that have had two or more seizures since the age of 6, or have a diagnosis of epilepsy.

What CAN’T they Ask?

An employer cannot ask a medical professional for an employee’s medical records, or information about an employee’s health, without permission from the employee. Even if the employee approves this, they have a right to check the records before they’re passed on.

Employers cannot request that an employee discloses information about any health conditions that arise during employment. Employees might choose to volunteer information, and if they do then the employer is required to make reasonable adjustments to support the employee in their work.

If an employer is making reasonable adjustments for an employee, they can seek advice from the employee’s GP if they have the employee’s consent.

What about During Recruitment?

The recruitment stage is the perfect time to get to know everything you need to about a candidate to ensure they are the right fit for the job and to your company.

However, while you may want to lay all cards on the table at the first meeting, it’s important for employers to know that they are not allowed to ask any questions regarding health or disability during recruitment. This includes questions about the number of sick days taken at the applicant’s previous place of work.

Exceptions are made for questions that determine the applicant’s ability to take part in any assessments, and to highlight any adjustments that the applicant might require to have a fair shot at the assessment. There are also exceptions made for questions that determine whether or not an applicant can do a part of the job that is absolutely essential – for example, questions that determine whether applicants can climb or do heavy lifting.

If a company can also show that their questions are for diversity monitoring, or to aid positive action (improving the rate of employment for those with disabilities or medical conditions), then they are able to ask questions for these purposes.

The ‘recruitment stage’ covers everything up until the point where a job offer is made. After the offer has been made to the applicant, the rules for employees apply.

What Protection is Available for the Employer and the Employee?

The Equality Act 2010, which protects against discrimination in the workplace, ensures that individuals with disabilities and medical conditions cannot be treated unfairly at work.

The employee is protected by law when it comes to asking questions about medical conditions, as the employer must be able to show that they had a valid reason for asking a question.

If an employee believes that they were asked a question for purposes of discrimination or as an invasion of privacy, then the employee can seek legal action.

The employer and employee can both work to protect themselves. Employers should take extra care only to ask questions that they can justify if required, whilst employees should take extra care only to answer the questions that are asked. It is easy to accidentally volunteer more information than necessary.

Who Should an Employee Talk to about a Medical Condition?

While speaking about a medical condition with an employer can seems daunting, it is always best to let them know of anything they should be aware of. There are many reasons why you might wish to disclose this information to someone at work. For example:

• You need reasonable adjustments to be made in order to perform in your job role.
• There are symptoms to your condition which may require action from someone else – i.e. if you have a seizure or come into contact with an allergen that causes a severe reaction.
• Day-to-day stressors might affect your condition, in which can you may want your employer to be aware so that they are able to manage your work load better.
• You might just need some emotional support from someone from time to time.

Whatever your reasons for wanting to share this information at work, it can be hard to know who you can talk to.

The best people for an employee to speak to are:

• Direct managers.
• Occupational health advisors.
• Trade unions (if there are concerns about treatment).
• HR managers, who may be able to provide advice and also to offer support with any adjustments, sick days and flexible working hours if needed.

Whilst employees have the option to keep new medical conditions hidden, it can be extremely difficult to do so. It might actually be beneficial for the employee to volunteer that information.

An employee can receive warnings and reprimands for continued lateness or poor performance, and employment contracts can be dissolved following long-term sickness leave if the employer is unaware of any medical reasons for this. Whereas, additional rights and support can be afforded to those that have been open about their health.

Studies show that approximately 30% of employees would feel scared to tell an employer about a medical condition, for fear of discrimination or losing their job. And so, it is particularly important that employers follow the law. It’s also vital that any medical information is stored securely in a locked filing cabinet or in trustworthy HR software, where it cannot be accessed by anyone other than those that need to know the details.

Employers also have a right to ask for medical certificates and proof of any condition, including fit notes if necessary, which should also be kept in a secure place.

For more on what employers can legally ask their employees about disability and health, check out the gov.uk site.

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