Gabrielle Hansen, BridgeTower Media Newswires
Although many employers are familiar with the way in which the Americans with Disabilities Act applies to their current employees, the way in which it applies to prospective employees can sometimes can be surprising because the ADA places different requirements on employers, depending on whether they have made offers of employment. It is also important to keep in mind two other laws that sometimes are misunderstood: the Genetic Information Nondiscrimination Act (GINA) and the Health Insurance Portability and Accountability Act (HIPAA).
—————
ADA
Regardless of whether an applicant has a disability, the ADA and Oregon disability law control when and what medical information an employer can request of an applicant.
At the pre-employment, pre-offer stage, employers may not ask disability-related questions or request that an applicant submit to a medical examination. However, at this stage, an employer can ask an applicant:
• Whether, based on a description of the application process, he or she will need a reasonable accommodation for the process;
• Whether he or she can perform the functions of the job with or without a reasonable accommodation; and
• To describe or demonstrate how he or she would perform the functions of the job.
If employers choose to include these questions in the application process, the employer should ask all applicants in the same job category the same questions.
Notwithstanding the above, if, at the pre-offer stage an employer reasonably believes that an applicant will need a reasonable accommodation to perform the job, either because the applicant has an obvious disability or has voluntarily disclosed a hidden disability, the employer can ask the person to state whether he or she will or will not need a reasonable accommodation to perform the job and what an accommodation would be.
For example, if an applicant with a visual impairment applied for a job that required computer work, the employer could ask if the applicant would need a reasonable accommodation to perform the work. If the applicant responds by saying he or she will not need an accommodation, the employer cannot ask additional questions about the accommodation. However, the employer could ask the applicant to demonstrate or describe how he or she would perform the work.
In contrast, after an employer makes a conditional offer of employment, and as long as the employer makes the same requests of all applicants in the same job category, the law allows an employer to ask an applicant questions related to his or her health and require that he or she submit to a pre-employment physical.
Although an employer’s medical inquiry at the post-offer stage does not necessarily have to be related to the job, due to the sensitive nature of medical information, employers should still be thoughtful about the type of information they request from an applicant. The post-offer stage is also the time during which an employer may ask all applicants if they need a reasonable accommodation to perform the job and, if so, for the corresponding documentation.
Once an employer has obtained medical information about an applicant, the employer must ensure that its use of the information complies with the law. First, employers must use care that they keep all medical information gathered through this process confidential and separate from the applicant’s eventual personnel file. Second, should an employer decide to revoke a conditional offer of employment based on the information they learned in a post-offer, pre-employment medical inquiry, the employer should consider consulting legal counsel.
—————
GINA and HIPAA
A discussion of pre-employment medical inquiries would not be complete without inclusion of GINA and HIPAA.
GINA is a federal law that limits what genetic information an employer may request from an applicant or employee (Oregon law also prohibits employers from obtaining or using the genetic information of an employee, an applicant, or one of their blood relatives). There are only six very limited exceptions to GINA’s protections for genetic information. When it comes to complying with GINA, an employer’s default position should be that it does not make any inquiry in regards to genetic information.
Genetic information includes family medical history and the results of an individual’s genetic testing. Employers, in addition to making sure that none of its own questions is about GINA, should ensure that if it requires employees to attend a pre-employment physical examination, the health care provider does not ask any questions about the information protected by GINA.
In contrast, HIPAA, which serves to make health insurance more portable for employees and sets standards for the privacy of health information, does not apply to most employers. HIPAA applies only to group health plans, health care clearinghouses, and health care providers that transmit medical information electronically.
HIPAA’s privacy standards require specific and diligent compliance. Thus, before an employer agrees to comply with HIPAA, it should consider whether HIPAA actually applies.
To ensure compliance with the applicable laws in regards to pre-employment medical inquires, employers should review their processes and procedures with their legal counsel to make sure that they are asking the right questions at the right time.
—————
Gabrielle Hansen is an attorney with Barran Liebman LLP. She represents employers in a variety of ERISA and employment matters. Contact her at 503-276-2112 or ghansen@barran.com.
