Quirky Question # 166, Employer Questionnaire Regarding Time Away From Work

Question:

We have an employee who has missed a lot of work because of various non-work related injuries, a fall off a motorcycle, a ski injury and various sore back claims. We would like to give him a questionnaire asking questions about his ability to perform his job duties. What laws do we need to worry about?

Answer:

There are two issues raised by your question: (1) how much information you may seek from medical questionnaires and (2) whether you are on notice of a disability or are “regarding” this employee as disabled.

On the issue of the proper scope of questionnaires, under the Americans with Disabilities Act (ADA), you may only ask about an employee’s present ability to perform essential job related functions. Many employers ask for too much information. For example, in a recent case in California, a court found that the employer violated the ADA because it requested that the employee, a security guard, fill out a medical questionnaire that was not narrowly tailored to whether he could perform the essential functions of a security guard position. The court found improper general questions such as:

• Have you ever been treated for a mental condition?
• List all medication you are currently taking with dosage, frequency and reason.
• Have you ever consulted or been treated by clinics, physicians, health or other practitioners within the past years for other than minor illness?

Additionally, most states have specific statutes governing the types of medical information an employer can ask for (and the medical provider can provide), and California is no exception. The Confidentiality of Medical Records Act in California prohibits medical providers from providing medical information about patients without patient authorization except for information that “describes functional limitations of the patient that may entitle the patient to leave from work for medical reasons or limit the patient’s fitness to perform his or her present employment, provided that no statement of medical cause is included in the information disclosed.”

Federal and state laws also prohibit an employer from requesting and using generic information or characteristics and render impermissible most questions that inquire about family medical history.

The other area of concern is that employees are considered “disabled” under state law if the employee is “regarded or treated by the employer … as having, or having had, any physical condition that makes achievement of a major life activity difficult” or as “having a health impairment that has no present disabling effect but may become a physical disability.” The mere belief that an employee has a disability triggers duties on the part of the employer to engage in the interactive process with the affected employee and may require the employee to offer the employee reasonable accommodations in order to allow the employee to perform the essential functions of his job even though he does not suffer from an actual disability. Here, your real issue is the employee’s attendance; nothing compels a conclusion that the conditions of the employee’s back as opposed to his choice of rugged sports is the problem. Since you do not believe the employee has a disability, you should avoid taking action that suggests you “regard” him as disabled because of these back-related events.

Because this employee’s potential back injuries are of interest solely because of attendance issues, it is more prudent to forego any inquiry and treat him the same as any other employee having attendance problems. Document the attendance standard and the failure to meet it. Ensure that your policy advising employees of their right to accommodation of disabilities is current and has recently been circulated with a signed acknowledgment by all employees. If this employee’s essential job duties are physical and your observations of his performance suggests his potential back injuries are relevant to whether he can currently perform the essential functions of his position, consult with counsel and draft a questionnaire that asks only for information relevant to those duties.

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