Medical Inquiries and ADA
brark
8 Posts
We have an employee on a a non-FMLA leave for mental illness. Employee is now requesting more unpaid leave time. We asked for 1. Medical diagnosis, 2. List of medications that may affect employee's work and 3. Impacts of diagnosis that we should be aware of. This is our first attempt to document the mental illness to see what we are working with.
Employee said they contacted a lawyer and they do not have to submit the info on their medications due to ADA. Employee has verbally told me the meds make her fall asleep at work and also caused a heart attack.
Employee is not in public safety and coincidentally, also has physical disabilities that we have made accomodations for. CAN WE LEGALLY REQUEST THE INFO REGARDING HER MEDS OR NOT?
Employee said they contacted a lawyer and they do not have to submit the info on their medications due to ADA. Employee has verbally told me the meds make her fall asleep at work and also caused a heart attack.
Employee is not in public safety and coincidentally, also has physical disabilities that we have made accomodations for. CAN WE LEGALLY REQUEST THE INFO REGARDING HER MEDS OR NOT?
Comments
The ADA overhauled the neanderthall processes in which we routinely requested and required this sort of stuff. The ADA allows you to request a doctor's review of a job description and a fitness for duty report from the doctor (not to include those things mentioned above). You can require that the employee furnish you with a statement from a practitioner that he can indeed perform the essential functions of a job with our without accommodation.
And you can suggest to the employee that he enable you and the doctor to have some limited interraction (fax/mail/etc) regarding the intricacies of the job and the parts of it the physician feel should be reassigned or accommodated in some manner.
A. Employee is having difficulty performing the job effectively, falling asleep on the job.
B. Employee requests an accommodation for an alleged disability.
C. Employee becomes ill and the ability to perform the essential duties are in question.
Other situations also apply. To me, this is quite clear that I can request the inquiry, however the medications might not be allowed (however most MDs put that in the info without a request made).
You'll note that the conditions you cite are related either to performance or information that the employee has provided in furtherance of an accommodation. Those are the things the ADA allows you to pursue; however, don't confuse that with asking for a diagnosis, which you cannot ask for.
One of the basic elements of and reasons for the ADA is to prohibit employers and prospective employers from making any inquiry whatever which will or might tend to elicit information from a candidate or employee regarding a disability.
If an employee has a visible physical disability you may ask him to demonstrate how he would perform the job tasks as long as you ask all other applicants to do the same.
If your applicant or employee reveals a disability to you, the ADA allows you to pursue the conversation to the extent of the information he gave you. The reason, though, is only to determine fitness for duty. If the applicant says, "Guess you notice that my left leg doesn't function at all," it is perfectly alright for you to follow up with, "Do you anticipate that will affect your ability to perform the position you have applied for?" You may not ask, 'Aha, so you're on Prozac. You wanna tell me about your mental illness?'
You cannot, and the ADA does not allow you to, ask about a medical condition, otherwise. If an employee has revealed to you a potential disability and asked for some form of job consideration, you may enter into a discussion about the elements of the job and whether the ee can perform them and you should discuss possible reasonable accommodations. This is referred to as 'the interractive process'. You cannot approach an employee in an effort to elicit such information. You cannot go to an employee and have a conversation about what somebody said or what a supervisor said about a medical condition, including the use of prescription medication.
You may open a conversation about PERFORMANCE.
If John tells his supervisor he is taking four hydrocodone daily and he's operating a brake press or a towmotor, yes, I would talk to John about what John said. You cannot, however, tell John that you understand he is taking anti-depressants and ask him for information relative to the cause for that prescription.
I once suspended and later terminated an employee who told me he had gotten a patch the prior nite at the emergency room that is stronger than codeine and that he had consumed a bottle of pain pills in the preceding 24 hours. I did not ask him for a medical diagnosis. He was suspended because of his statement and a concern for safety. He was required to see his physician and would not. He was fired.
You may also tell John, "Your supervisor and I have discussed your performance (as cited here in this conversation with you) and it is my determination that we will require from your physician what we call a fitness for duty report. I am giving you a complete copy of your job description which you should give to your physician. He should use this description in his determination as to your medical fitness for duty.
Unless you want to wind up in court, you should never, ever mention 'mental illness' in your remarks to an employee or anybody else.
You should evaluate this is terms of what information do you really need to make the decisions that you need to make. Is it really necessary to have a diagnosis and the names of the meds or can you rely on what the doctor says? Unless a diagnosis and knowledge of the meds is job related and has a business necessity (as described above) I don't think that you are entitled to it. Another issue is HIPAA. Doesn't that require the privacy of the information that you want?