Speaking of Disabled: The ADA’s Limitations On Disability-Related Inquiries of Current Employees
The Americans with Disabilities Act (ADA) limits an employer’s ability to ask an employee questions about his or her medical condition. The ADA imposes different obligations on employers at three different stages of the hiring and employment process: (1) pre-offer, (2) post-offer, but pre-employment, and (3) during employment. But the rules are different at each stage, and employers are often perplexed as to what questions can be asked of applicants and employees. This article focuses specifically on medical inquires made during the course of an employee’s employment.
Employers are allowed to conduct disability-related inquiries of current employees if they are job-related and consistent with business necessity. Of course, the job-relatedness and business necessity of a given question will depend on the type of job at issue. For example, it may be appropriate to ask whether an employee in a physically demanding position has a heart condition. In that case, the employer may have a reasonable belief that the employee is putting himself or herself in danger. In contrast, because the sedentary nature of administrative work is unlikely to put an administrative assistant at risk if he or she has a heart condition, questions about an administrative assistant’s heart condition probably would not be job-related and, therefore, would exceed the ADA’s limitations on permissible medical inquiries.
These types of questions can be tricky and employers may sometimes feel like they do not know what they can and cannot ask about an employee’s medical condition. Indeed, some questions are acceptable to ask an employee (regardless of the job involved), while others are clearly unacceptable, and still others may depend on the circumstances. The following guidelines will help keep supervisors out of trouble and in the good graces of their legal department.
Questions Employers May AskMost employers recognize that it is acceptable to ask general questions that may unintentionally provoke medically-related responses, such as “How are you today?” or “Is everything okay?” But, there are also several others scenarios that permit employers to lawfully navigate into more specific questioning about an employee’s health condition:
• After an unexcused absence, a supervisor may ask questions such as “Why were you absent from work yesterday?” While the answer to this question may identify a disability, the question serves a business purpose and is not aimed at uncovering a medical condition since there are a wide variety of reasons an employee may miss work.
• A supervisor may ask questions such as “Are you feeling better today?” or “Do you have a doctor’s note?” once an employee returns from sick leave. These types of questions are not directed at identifying a particular disability and the answers may reflect the employee’s fitness for duty, which is a legitimate business concern.
• It is typically acceptable to ask an employee how he broke his arm, sprained his ankle, or suffered from some other obvious condition that is not a “disability” covered by the ADA.
• After an employee’s drug test comes back positive, an employer may ask “What medications have you taken that might have resulted in this positive test result?” and “Are you taking this medication under a lawful prescription?”
• If an employee requests an accommodation for her medical condition, an employer can ask for details and medical support in order to explore whether the requested accommodation is reasonable and available.
• If the employee suddenly stops performing the job well, the employer can ask “Why is your performance suffering?”
Questions Employers Should Never AskJust as some things are better left unsaid, there are certain disability-related questions that should not be asked at any time. Regardless of the job at issue, the following questions will likely find employers in hot water, legally speaking:
• “What are all of the prescription medications you currently take?”
• “How much alcohol do you drink?” or “Have you ever been treated for alcoholism?”
• “Why are you in a wheelchair?”
• “Do you have any medical conditions or are you taking any medications that are affecting your job performance?” (see below for how such questions should be asked).
• Upon learning that an employee is gay, asking him “Are you HIV positive?”
• While the focus of this article is the ADA, another statute – the Genetic Information Nondiscrimination Act of 2008 (GINA) – prohibits medical inquiries by an employer into an employee’s or family member’s genetic history, such as “Is there a history of heart disease, prostate cancer, or other diseases or disorders in your family?”
As you can see, these broad-based questions do not focus on an individual’s ability to perform the job. Instead, they relate to a history of disability or go beyond the scope of information that might be needed to evaluate job performance. Because there are few, if any, situations in which employers need to know the answers to these questions, they should be avoided in favor of more directed, job-related inquiries.
Questions That May Depend on the Job at Issue
The majority of medical questions that employers actually want to ask will fall into the “it depends” category. The following examples illustrate the need for disability-related questions to be closely tailored to job functions:
• An employer can ask an employee in a safety-sensitive job (such as a bus driver, power plant operator, pilot) questions about whether she takes prescription medication that may cause drowsiness or otherwise impair her ability to safely perform her job.
• A police officer who appears anxious or depressed may be asked about his mental state if there is evidence to suggest his performance is being affected.
• A firefighter may be asked about behavior that appears consistent with post-traumatic stress disorder if there is reason to believe her safety is at risk or if her job performance has declined.
• If an employee volunteers information about his health condition, the employer may ask follow-up questions to determine the employee’s ability to perform the essential functions of the job.
The ADA’s rule on the scope of permissible medical inquiries an employer may make of its employees is clear – it must be job-related and consistent with business necessity. But, this rule is often difficult to apply. While the illustrations above are helpful to use as examples, it is important to reiterate that ADA–compliance issues are frequently fact-specific and the best approach may depend on the particular issues of a situation. Another question you should ask yourself is, “Do I really want to know more about an employee’s medical condition?” especially given that a lack of knowledge about a disability is a defense in an ADA lawsuit.
The good news practically speaking is that it is rare for an impermissible medical inquiry to serve as the sole basis of a lawsuit. Nevertheless, evidence of an impermissible medical inquiry can support an independent claim under the ADA, and is often presented to support a termination, failure to promote or other disability discrimination claim brought under the ADA. For these reasons, employers should try to avoid these types of questions in the first place. If you have questions about whether a specific inquiry is permissible under the ADA, please contact the Labor and Employment Practice Group at Troutman Sanders LLP for assistance.