Privacy Issues in the Workplace

 Require medical tests or inquire about medical condition before making an offer  Require post-offer medical tests unless they are job-related and consistent with a business necessity, narrowly tailored, and uniformly applied  Base hiring or personnel decisions upon an applicant or employee’s medical condition unless the applicant/employee is unable to perform the essential functions of the job, with or without reasonable accommodation  Disclose medical information about an applicant/employee absent written authorization, court order, or subpoena  Applicants and employees’ interest in keeping their medical condition and information private v. Employer’s legitimate need to determine whether applicant/employee is able to perform the essential functions of the job

Generally, employers must NOT:

Applicable balancing test:

B. P RE -O FFER I NQUIRIES AND E XAMINATIONS —W HAT Y OU C AN AND C ANNOT A SK J OB A PPLICANTS B EFORE M AKING A C ONDITIONAL O FFER OF E MPLOYMENT The pre-offer stage encompasses any hiring activity that occurs prior to making a conditional offer of employment , including but not limited to written job applications, employment interviews, background investigations, and decisions to hire. The following guidelines apply not only to questions directed to the applicant, but also apply to inquiries made of third parties about the applicant, such as the applicant’s family, friends, and former employers. At this stage, an employer may not conduct a medical examination or make a “disability-related inquiry.” Such an inquiry is defined “as a question [or a series of questions] that is likely to elicit information about a disability.” 139 [Included in this workbook as Appendix Q is a helpful document entitled “ADA Enforcement Guidance: Pre-employment Disability Related Questions and Medical Examinations” issued by the Office of the Legal Counsel of the ADA Division of the Equal Employment Opportunity Commission (EEOC) on October 10, 1995.]

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 52