When an Employer May Ask About Your Health

Answer first: three stages, three different rules

The Americans with Disabilities Act treats medical examinations and inquiries as part of its prohibition on discrimination, and the implementing regulation splits the question by where in the hiring and employment process it is asked.

Before an offer, the general rule is a prohibition. Except as permitted by the regulation's list of exceptions, it is unlawful for a covered entity to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability. What is permitted instead is an inquiry into ability: a covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and may ask an applicant to describe or demonstrate how, with or without reasonable accommodation, they will be able to perform those functions.

After an offer and before duties begin, the rule opens up substantially. A covered entity may require a medical examination or inquiry after making an offer of employment and before the applicant begins their employment duties, and may condition the offer on the results, if all entering employees in the same job category are subjected to such an examination regardless of disability.

Once someone is an employee, the rule tightens again but differently. A covered entity may require a medical examination or inquiry of an employee that is job-related and consistent with business necessity, and may make inquiries into the ability of an employee to perform job-related functions.

The statute states the employee-stage rule as a prohibition with an exception attached: a covered entity shall not require a medical examination and shall 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 such examination or inquiry is shown to be job-related and consistent with business necessity.

The post-offer stage is the widest, and it has its own trade-off

The employment entrance examination is the stage where an employer's latitude is greatest, and the regulation is explicit about why that is acceptable.

It says medical examinations conducted in accordance with this section do not have to be job-related and consistent with business necessity. That is a real difference from the employee stage — at this point the examination does not need a justification tied to the job.

But the regulation immediately attaches the constraint that matters. If certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation.

So the trade is: ask broadly, act narrowly. The examination can range wider than the job, but a decision made on the basis of what it turns up has to come back to the job.

The other constraint at this stage is uniformity. The permission applies only if all entering employees in the same job category are subjected to such an examination regardless of disability. It is not a permission to examine a particular applicant.

The statute's version of the same permission uses slightly different words for the group — all entering employees are subjected to such an examination — while the regulation says all entering employees in the same job category. Both are printed here rather than reconciled.

Whatever is learned goes into a separate file

The confidentiality requirement is the same at both the post-offer stage and the employee stage, and the regulation states it twice in nearly identical language.

Information obtained regarding the medical condition or history of the applicant or employee shall be collected and maintained on separate forms and in separate medical files, and be treated as a confidential medical record.

There are three exceptions, and they are narrow enough to list in full. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment. And government officials investigating compliance with the part shall be provided relevant information on request.

Two things follow from the wording of the first exception. What supervisors and managers may be told is restrictions and accommodations — not the underlying condition, diagnosis, history or test result. And the trigger is necessity.

The regulation adds a general limit alongside the list: information obtained under these provisions shall not be used for any purpose inconsistent with the part.

Two things the regulation says are not medical examinations

The regulation carves out categories that would otherwise sit inside the definition, and both are worth knowing because they are commonly assumed to be covered.

The first is drug testing. For purposes of this part, a test to determine the illegal use of drugs is not considered a medical examination, so administering such tests to applicants or employees is not a violation of the prohibition. The regulation is careful about what that does and does not settle: this part does not encourage, prohibit, or authorize a covered entity to conduct drug tests of job applicants or employees to determine the illegal use of drugs or to make employment decisions based on such test results.

There is a confidentiality consequence attached. Any information regarding the medical condition or history of any employee or applicant obtained from a test to determine the illegal use of drugs — except information regarding the illegal use of drugs — is subject to the confidentiality requirements described above.

The second carve-out is smoking. A covered entity may prohibit or impose restrictions on smoking in places of employment, and such restrictions do not violate any provision of the part.

A separate provision addresses transportation employees, stating that the part does not encourage, prohibit or authorize the otherwise lawful exercise by entities subject to Department of Transportation jurisdiction of authority to test employees in safety-sensitive positions for illegal drug use or on-duty alcohol impairment, or to remove people from such positions who test positive.

Benefit plans, and the boundary the regulation draws around them

The same section that governs examinations contains a provision about insurance and benefit plans, and it is the reason a plan can rate risks at all without that being treated as a disability question.

It provides that an insurer, hospital or medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or similar organizations, may underwrite risks, classify risks, or administer such risks that are based on or not inconsistent with State law.

It extends the same permission to the employer. A covered entity may establish, sponsor, observe or administer the terms of a bona fide benefit plan that are based on underwriting, classifying or administering risks that are based on or not inconsistent with State law. And it covers plans outside state insurance regulation: a covered entity may establish, sponsor, observe or administer the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.

Then it attaches the limit that keeps the provision from swallowing the rule. These activities are permitted unless they are being used as a subterfuge to evade the purposes of this part.

One point about who may complain under these provisions appears in the regulation's interpretive appendix, in a footnote. It states that claims of improper disability-related inquiries or medical examinations, improper disclosure of confidential medical information, or retaliation may be brought by any applicant or employee, not just individuals with disabilities, and cites appellate decisions for the proposition. Whether any particular claim succeeds is a separate matter this page does not address.

Reading a form or a request with the stages in mind

The practical value of this structure is that it turns a vague sense of intrusiveness into a locatable question: which stage is this, and what does the rule permit at that stage.

Before an offer, the permitted question is about ability to perform job-related functions, including a request to describe or demonstrate how the person would perform them with or without reasonable accommodation. A question about whether a person has a disability, or about the nature or severity of one, is what the general prohibition addresses.

After an offer, the permission is broad but conditional on uniformity across entering employees in the same job category, and any exclusion based on the results has to be job-related and consistent with business necessity, with reasonable accommodation considered.

During employment, the standard is job-related and consistent with business necessity for an examination or a disability inquiry, and inquiries into the ability to perform job-related functions remain available.

In all of it, the records rule is constant: separate forms, separate files, confidential treatment, and a short list of who may be told what.

This page describes those requirements. It does not tell any reader that a question they were asked crossed a line, that they have a claim, or how one would come out. Those are determinations made on a full record.