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Jun 16, 2017

Medical Information: Ask for Only the Information You Need


Category: Employment

The Maine Human Rights Act, as well as the federal Americans with Disabilities Act, limit the medical information that an employer may request or seek from employees. As the Maine Human Rights Act puts it:
 
"A covered entity may not require a medical examination and may not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity."
 
In looking at this issue, it helps to look at how an investigator from the Maine Human Rights Commission would evaluate medical inquiries. In a recent case, the investigator found that the employee was fired for a non-discriminatory reason BUT that there was a violation of the Act due exceeding what was permissible for medical inquiries. In making the decision that the employer had gone too far with its medical inquiries, the investigator used as guidance information from the federal anti-discrimination agency, the EEOC. In particular, the investigator relied on the EEOC's "Enforcement Guidance on Disability-Related Inquiries and Medical Examinations" (2002). That document is easily accessible on line at www.eeoc.gov.
 
Using that Enforcement Guidance document as a guide, the investigator determined that an "employer may require an employee to provide documentation that is sufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation. This means that, in most circumstances, an employer cannot ask for an employee's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation." The case being dealt with was one where the employee was out of work because of a disability and the question was what the employer had to do in terms of evaluating whether there was a reasonable accommodation available that would allow the employee to return to work. Rather than just ask the employee's treatment provider whether the employee could do the essential functions of the job and what accommodation was needed (this is where having a job description comes in handy), the employer sought a significant part of the employee's medical background.
 
The safest practice is to take the employee's job description, give it to the employee's medical provider, and ask them to detail which portions of the job that the employee can do, which ones the employee cannot do, and what if any reasonable accommodations would allow the employee to perform their job. A request may also ask that the medical provider substantiate why the requested accommodation is needed, if the employee has requested a particular solution.
 
As the Commission investigator laid out in the legal background of her investigator's report, "The [EEOC] has previously stated that when an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation. However, an employer that requests additional information or requires a medical examination based on a good faith belief that the documentation the employee submitted is insufficient would not be liable for retaliation." To help avoid retaliation claims, then, an employer should evaluate the need for medical information before insisting on it. Look at whether the information is really necessary to figure out what kind of accommodation the employee needs to do the items in their job description. Ask the treatment provider to evaluate the ability to do the job and the accommodation needed and avoid playing doctor. And then engage in the back and forth discussion with the employee that is so critical to reducing claims against employers in this area - the Commission and courts both look to see what good faith effort the employer made to come up with some resolution of the problem.
 
Sometimes there are special circumstances that allow further inquiry about an employee's medical condition or disability. For example, the employee may provide documentation that is insufficient to determine what kind of accommodation would work or determine whether the employee can do the job. As the investigator in this actual case before the Commission explained, "Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation. Documentation also might be insufficient where, for example: (1) the health care professional does not have the expertise to give an opinion about the employee's medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or (3) other factors indicate that the information provided is not credible or is fraudulent. If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided. Any medical examination conducted by the employer's health care professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation." The important message from this passage is that medical examinations conducted by the employer's health care professional must be job-related and consistent with business necessity. Was the employer focused on the employee's health and disability or just on what was needed for the job? Keep the information sought limited to only what is needed and document that you didn't go any further than that.

 





This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals , companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.