Vol. 45, No. 11
The purpose of the ADA is to ensure that employees and applicants are assessed on the basis of their merit and performance—not on the basis of any disability. In many cases, conditions that qualify as a disability under the law are not immediately apparent. Employers often may not become aware of conditions such as epilepsy, diabetes, HIV, lupus, dyslexia, mental illnesses or even degenerative back conditions without first making medical inquiries.
While such inquiries are restricted, they are not completely banned. Employers are legally entitled to ask current employees for medical information in certain situations; however, even when employers have the legal right to ask a question, it may not be in their best interests to do so.
When you ask a disability-related question, the answer often comes with a great deal of accompanying baggage. For example, when you possess more medical information about an employee, you may suddenly learn that this individual is entitled to special legal protection as a member of a protected class.
Further, once you have such information, you have the burden of keeping it confidential. And asking disability-related questions may signal to employees (and a jury) that the worker’s medical concerns were a factor in your decision-making.
So, even if you may ask a medically related question, hold your horses and pop the question only if the following are true:
- You are prepared to guard confidentiality.
- The inquiry is in response to a request for reasonable accommodation, and the disability isn’t obvious.
- You need the information for a legitimate business reason.
Otherwise, too much information spread out among too many people can only lead to trouble.