Confidentiality 101: What An Employer May And May Not Do Or Disclose Under The ADA

Under the Americans With Disabilities Act and similar laws, confidentiality of your physical and mental healh condition is promoted in two ways:

• Employers and prospective employers are generally prohibited from asking about your health condition or health history
• If an employer learns about your health condition, the information must be kept confidential. The law goes so far as to require that this information must be kept in a file which is separate from your standard employee file.

During the hiring/interview process: An employer may not ask questions about your health before offering you a job. Even then, questions can only be asked if they’re relevant to your ability to perform a certain job, and if they are asked of everyone who applies for the job.

After hiring you:

An employer may not :

• Explain to co-workers that you have a health condition even if you look sick, lose weight or appear fatigued. Although your co-workers and others in the workplace may be concerned about your health, an employer may not reveal your health condition.
• Explain to other employees that their co-worker is allowed to do something that generally is not permitted because of a health condition. For instance, an employer cannot explain that you are permitted to work at home or take periodic rest breaks because of a health condition.
• Explain to other employees why you are absent from work.
• Ask whether a health condition is affecting your ability to do your job. An employer may only ask questions or require an employee to have a medical examination when it has a legitimate reason to believe that a medical condition may be affecting your ability to do your job, or your ability to do your job safely. Poor job performance, however, often is unrelated to a medical condition and should be handled in accordance with an employer's existing employment policies.
• The ADA contains narrow exceptions for disclosing specific, limited information. Information about your health may be provided to:
• • Supervisors and managers
  • First aid and safety personnel
  • Government officials investigating compliance with the Americans With Disabilities Act.
  • State workers' compensation offices, state second injury funds, or workers' compensation insurance carriers in accordance with state workers' compensation laws.
  • Insurers for insurance purposes.

An Employer May

• Disclose your health condition to your supervisor or manager if necessary to provide an accommodation.
• Explain that it protects employee privacy and complies with all federal and state laws. An employer may also include such information in the employee handbook.

NOTE: If you tell your employer about your health condition, note in your Work Journal who you told, when, and whatw his or her reaction was.

For information, see:

• The ADA: An Overview
• Eligibility For ADA Protections ("disbability" and "qualified" to do your job)
• • What Are The "Essential Functions" Of My Job?
• Covered Employers
• • Americans With Disabilities: The State Fair Employment Laws (similar to the ADA)
• Discrimination 101
• Accommodations
• • How To Determine What Is A Reasonable Accommodation For My My Job
  • How To Request And Negotiate An Accommodation At Work
• • Sample Letters To Request An Accommodation
• Enforcement Of Your Rights Under The ADA
• • How To Get Started Enforcing Your Rights Under The ADA
  • Sample EEOC complaint letter

For information about additional legal protections at work, click here.