There has never been a time before when health issues impacted the workplace more than they do right now. As an employer, you need to identify employees who have symptoms of or tested positive for COVID-19 to adequately notify others in the workplace who were exposed. This has had a significant impact on the workplace. Many companies are struggling to survive—while others are staffing up to reopen to meet the rising demand.

Regardless of where your business stands, keeping everyone safe is perhaps your top priority. Nevertheless, there are limitations to what you can ask an employee about their health.

Medical conditions and illnesses are sensitive subjects for employees and employers alike. The Americans with Disabilities Act (ADA) protects employees and their privacy. This law applies to businesses with 15 or more employees. It has strict rules about an employer’s ability to ask employees about their health, inquire about a disability, or require medical exams.

This article looks at the questions you can ask about a person’s health during the hiring process and course of employment (and the questions you should avoid).

Health Questions During Interviews

Previously, employers had the right to ask applicants to provide information regarding their physical or mental conditions. However, this information was used at times to discriminate against specific candidates. To address this issue, the ADA developed guidelines to ensure job applicants are selected for a position solely based on merit. Also, it protects the rights of employers to ensure the employees in the workplace can efficiently perform the essential functions of their jobs.

During the interview process, you aren’t allowed to make any disability-related inquiries or medical examinations of candidates—even if you feel they are job-related. Questions about previous or current illnesses, medications, or medical treatments, disabilities, substance abuse, family medical issues, or Workers’ Compensation claims are also illegal.

Questions When Making Offer of Employment

According to the ADA, you are allowed to ask for a job-relevant medical exam or a specifically designed physical abilities test before putting someone on the payroll. Nevertheless, make sure that any tests you use are curated to test the job’s essential functions and that they accurately predict a candidate’s successful future job performance. For instance, drug testing is acceptable as long as it’s mandatory for all applicants for similar positions.

If you use medical exams, the ADA states that you should:

• Perform the examination after making a conditional offer of employment and not during the interview process.
• Make the exam mandatory for all candidates and not just for a few selected individuals.
• Keep all the medical documentation safe and separate from the employee’s other records.
• Find a reasonable accommodation when a candidate’s disability makes it impossible to perform the job’s essential functions.

After an Absence

Once an employee returns to work after a severe injury or illness, you might want some kind of assurance that he or she will be able to resume regular work duties. This includes the certainty that the employee is completely healed or no longer contagious. You can have the employee submit a doctor’s note documenting that he or she is safe to perform the job.

Health Questions to Avoid

As medical questions are pretty personal, and violations of your employee’s privacy can lead to legal actions, it is best to avoid these common mistakes. You should never ask your employee or applicant;

• If she is pregnant;
• A broad question about their impairments;
• Their genetic information;
• Their previous workers’ compensation claim history;
• And if they use any prescription drugs or medications.

Additionally, you should never seek information about an employee’s disability from a co-worker, family member, doctor, or another person. Also, keep any medical records secure in a locked file.

Sometimes, your well-intentioned questions might also violate anti-discrimination laws. For instance, you might want to ask your team about food allergies so you can plan team meals. Though the conversation is for the employee’s well-being, such questions might sound like you are stepping into private medical information.

So, What are the Medical Conditions You Can Ask About?

You may ask your employee or applicants:

• General questions about their well-being (e.g., ‘How are you?’);
• If they are feeling all right when they look tired;
• About non-disability-related impairments (e.g., ‘How did you break your leg?’);
• Whether they are using drugs or alcohol;
• When is her baby due or how she is feeling (only when an employee has disclosed she is pregnant);
• To provide the name and contact details of a person to contact in case of a medical emergency;
• And whether they can perform specific job functions.

While you can ask all these questions, it is always ideal to consult with an HR expert or employment attorney to best understand how to approach specific situations.

Final Thoughts

The ADA or privacy laws never prevent you from checking how your employees feel. Does one of your employees feel sick? Does he/she need to go home? And, how are things going? You can freely ask all these questions without worry.

As a rule of thumb, ensure you respect your employees’ privacy. Restrain from asking them questions they might find revealing.

If you do not have an HR partner, Tandem HR is happy to help.
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