When can an employer ask about an employee’s health?  Multiple federal laws restrict when and what may be asked of applicants and employees.  In a recent letter, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for the enforcement of federal antidiscrimination laws, offered some guidance on medical inquiries under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), Title VII, and the Age Discrimination in Employment Act (ADEA).

Under the ADA, the EEOC notes the following restrictions on medical inquiries and examinations:

  • No disability-related inquiries or examinations are permitted before a job offer is made, even if job-related.
  • After a job offer is made, an employer can ask disability-related questions and require medical examinations, as long as it does so for all employees entering the same job category.
  • Withdrawing a job offer based on medical information “will almost certainly result in regarding an applicant as having a disability.”  Therefore, the employer must establish that the impairment makes the applicant unqualified to perform the essential job functions of the position or that the applicant poses a direct threat to the safety of himself or others based on the impairment.  Reasonable accommodations must be considered in determining whether the applicant can perform the essential functions of the job, or whether any direct threat can be reduced to an acceptable level/
  • After employment begins, any disability-related questions and medical examinations must be job-related and consistent with business necessity.

Under GINA, the EEOC affirms that employers cannot ask applicants about family medical history or other genetic information.  Specifically, medical history forms should not include such inquiries.

The EEOC also notes that asking only applicants in certain protected groups to provide post-offer medical information can violate age and sex discrimination laws.  For example, requiring women over 50 to submit information about their mammogranms, all women to provide information about Pap smears, and all individuals over 50 to provide colon cancer screening information targets women and individuals in a protected age group.  According to the EEOC, these inquiries are problematic under Title VII, which prohibits differential treatment on the basis of sex, and the ADEA, which prohibits age discrimination.

Bottom line – employers should be thoughtful about when and why to ask for medical information from applicants and employees.