Asheville, NC (CompNewsNetwork) - Obtaining and using medical information is an area fraught with challenges for employers. Understanding the applicable federal and state laws for each phase of the employment process — pre-offer, conditional offer and post-offer is key to reducing the possibilities of litigation.
• Prior to an offer of employment, carefully evaluate whether an applicant is qualified for the job, including asking non-medical questions about an applicant's ability to perform specific job functions, asking about an applicant's non-medical qualifications and skills, and asking applicants to describe or demonstrate how they would perform job tasks. A good resource for examples of permissible and impermissible pre-job offer questions under ADA is the Job Accommodation Network, www.jan.wvu.edu, Fact Sheet series, Pre-Offer, Disability-Related Questions: Dos and Don'ts.
• When making an employment offer, do make a written conditional offer that thoroughly describes the essential job duties.
• After an applicant is given a conditional job offer, but before he or she starts work, do ask disability-related questions and conduct medical examinations.
• Do know the difference between medical examinations and procedures or tests employers may require that would not be considered medical examinations. There are a number of procedures and tests that employers may require that are not considered medical examinations, including: blood and urine tests to determine the current illegal use of drugs; physical agility and physical fitness tests; and polygraph examinations.
• After employment begins, only make disability-related inquiries and require medical examinations if they are job related and consistent with business necessity. This means that the employer must have a reasonable belief based on objective evidence that:
• an employee will be unable to perform the essential functions of his or her job because of a medical condition; or,
• the employee will pose a direct threat because of a medical condition.
• Do obtain medical information about an employee when the employee has requested a reasonable accommodation and his or her disability or need for accommodation is not obvious.
• Do keep medical records separate from personnel records and keep under lock and key.
• Do pay costs of required medical examinations.
• Do give employees access to their medical records. Remember that HIPAA and state Medical Confidentiality Acts govern the dissemination of medical information.
• Prior to an offer of employment do not ask any disability-related questions, including, but not limited to if they have received Workers' Compensation benefits, take prescription drugs, have physical or mental impairments, and results of genetic testing.
• Prior to an offer of employment, do not require any medical examinations, even if they are related to the job.
• Do not discriminate. Have a consistent policy for all entering employees in the same job category. If a medical questionnaire and/or a medical examination is required after a conditional job offer, it must be required of all employees in the same job category.
• After employment begins, do not may make disability-related inquiries and do not require medical examinations unless they are job-related and consistent with business necessity.
• Do not ask an employee's co-worker, family member, or doctor about an employee's disability.
• Do not ask an employee what prescription drugs they are taking, unless they are in positions affecting public safety and the use of medications may affect their ability to perform essential functions and thereby result in a direct threat.
• Do not give managers access to employees' medical records, unless absolutely necessary.
• Do not discipline employees based on medical factors or failure to address a medical issue. The employer may discipline the employee for his or her performance problems just as it would any other employee having similar performance problems
This material is provided as general information and is not a substitute for legal or other professional advice.
Preston Diamond is Executive Director and Co-Founder of the Institute of WorkComp Professionals, based in Asheville, NC. It trains, tests and certifies select insurance professionals to alert employers about the hidden costs and overcharges in the Workers' Compensation insurance system.
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