Published on August 10th, 2011 by Alan L Sklover
Question: I work as an Employment Specialist in Ohio coaching a wide range of job seekers on their job search strategies. More and more people are asking me about being asked by prospective employers to provide them with a release to obtain medical histories and files on the actual job application.
Is this legal? If so, how do these applicants protect their medical information?
Cleveland Heights, Ohio
Answer: Great question, Dave, but one that is not easy to answer. Here’s my best:
1. With very few exceptions, employers can legally require employees to disclose prior medical histories and other medical information. Employers’ efforts to obtain more and more information about job applicants has given rise to more and more questions being asked in interviews about medical histories. To the surprise of many people – perhaps most people – as a general rule it is not illegal to refuse to hire someone, or even to terminate someone, based on a medical condition. “Isn’t that illegal discrimination?” you might say.
The general answer is “No.” While it is discrimination of a sort, it is not generally illegal. It is illegal to discriminate in employment matters against a person who has a disability, but it is not illegal to refuse to hire someone with, for example, tuberculosis, especially to work in a daycare center.
2. In fact, for some jobs, an applicants’ medical history may be very relevant. For example, should an airline hire a pilot if she has a history of fainting? Should a restaurant hire a chef with hepatitis? Should a color-blind bus driver be hired if he can’t tell the difference between a red light and a green light? (By the way, that bus driver example was an actual court case last year in Brooklyn, New York.)
3. A few states do have helpful statutes which limit health-related questions at interviews. For example, Maryland has a law that prohibits requiring a job applicant to provide information regarding a medical condition. (Maryland Ann. Code, Labor & Employment, Section 3-701). However, even this law permits such questions if the condition has a “direct, material, and timely relationship to the capacity or fitness of the applicant to perform the job properly.” (I suggest a quick Google search to find out if your own state is one of those few with such a law.)
4. One federal law, the Genetic Information Nondiscrimination Act (or “GINA”) does forbid employment discrimination based on “genetic information.” This federal law became effective in November, 2009, and forbids the use of “genetic information” in any employment decision (if the employer employs 15 or more employees.) “Genetic information” includes information about a person’s genetic tests, as well as information about “family history” of certain illnesses. With six narrow exceptions, employers are forbidden to even ask questions on these topics.
5. Federal and state laws do protect most employee medical history from dissemination. On the federal level in the U.S., several laws do require employer care with employee medical information: (a) the Americans with Disabilities Act (“ADA”) prohibits employers from disseminating medical information obtained in the process of addressing concerns of the disabled; (b) the Family and Medical Leave Act (“FMLA”) does the same for medical information obtained during certification for approved medical leaves of absence; and (c) the Health Insurance Portability and Accountability Act (“HIPAA”) does the same regarding information obtained from health insurance plans and insurance policies. None, however, addresses interview or application questions about medical histories.
Bottom line, Dave, is that most employees are vulnerable to employers prying into their medical histories, and even making decisions on hiring, advancement and firing on this basis, while genetic information (defined to include family medical history is off limits during the employment application and interview process). That said, there is increasing protection of employee medical information obtained in the course of employment-related activities such as applying for disability, applying for medical leave, or related to health care coverage.
Thanks for writing in. We hope you mention our blogsite to those you counsel on employment strategy. Feel free to write again with any other questions you, or your clients, may have.
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