Do I Have to Tell My Boss About My Medical Condition? If I Do, What Are My Privacy Rights?

Cancer. Depression. HIV/AIDS. These illnesses impact millions of people, yet are sometimes misunderstood or even stigmatized. For that reason, it’s understandable that employees who suffer from sensitive medical conditions often choose not to inform their employers of their status.  But should they?

Generally speaking, employees do not need to inform their employers of their medical conditions or disabilities as long as they are able to perform the essential functions of their jobs without an accommodation or medical leave.

A recent guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) is instructive here.  Although the guidance specifically addresses the workplace privacy rights of those who are HIV-positive, its common-sense approach applies equally to workers with other disabilities.

Situations Where Your Employer Is Entitled To Ask About Your Condition (And Where You May Be Required to Disclose):

According to the EEOC, under most circumstances, employers “cannot ask you whether you are HIV-positive or whether you have any other medical condition before making a job offer.” After an offer has been made, an employer is allowed to ask medical questions:

  • When the employer is soliciting the information for an affirmative action program.  Some companies actively reach out to employees with disabilities for purposes of special mentoring, training, or the like.  As the EEOC says, “you may choose whether to respond.”
  • After an offer has been made, but before employment begins, as long as everyone entering the same job category is asked the same questions.  For example, a hospital can require all its nurses to fill out a medical questionnaire before beginning work.
  • When you ask for a reasonable accommodation for your condition.  Under the federal Americans With Disabilities Act, as well as state laws like the New Jersey Law Against Discrimination, you are entitled to request your employer for a reasonable accommodation for your disabilities.  For example, a cancer patient might ask for a reduced schedule for the first few days after returning to work from a round of chemo, or for permission to work from home when feeling weak.  

Naturally, in order to determine whether your requested accommodation is reasonable and necessary, your employer is legally entitled to know the nature of your disability.  

  • When there is objective evidence that you may be unable to do your job or that you pose a safety risk because of your condition.  For example, if your depression medication is making you so tired that you begin falling asleep on the job, your employer is allowed to inquire whether an underlying health condition is the cause.  However, the EEOC emphasizes that your employer cannot rely on myths or stereotypes about your condition to conclude that you are unable to do your job or pose a safety risk – only the cold, hard facts of your performance.
  • When you ask to take medical leave, such as FMLA leave.  Disclosure of your medical condition is necessary for your employer to establish your eligibility for such leave.

Our offices would add one more circumstance to the EEOC’s list of when it’s permissible for your employer to inquire about your medical condition:

  • When there is a statute or other regulation requiring you to disclose.  Certain jobs legally require you to disclose certain conditions to your employer or to a governing agency.  For instance, health care workers may be required to disclose their HIV-positive status to their employers and/or the relevant government health authority.

How Much Am I Required to Disclose?

Again, if you need an accommodation and/or medical leave, you need to give your employer a sufficient reason for providing these.  As the EEOC states, “your employer may ask you . . . to describe your condition and how it affects your work.  You may also be asked to submit a letter from your doctor documenting that you have a medical condition and that you need an accommodation.”

However, in most cases, your doctor needn’t go into great detail about your health status, describing the onset of your condition, its treatment, and the myriad side effects.  A simple statement of your diagnosis, its impact on your work, and how an accommodation will help usually suffices (for example: “Bob underwent surgery for cancer.  He is cleared to work but is still experiencing weakness and fatigue. He needs to work seated and stay off his feet for a week or two.”)  

Further, the EEOC suggests that “if you do not want the employer to know your specific diagnosis, it may be enough to provide documentation that describes your condition more generally.” For example, an HIV-positive employee may ask that her doctor submit a letter stating that she has an “immune disorder”.

Living with a sensitive medical issue while working can be a tricky balancing act.  If you have questions about medical leave and/or reasonable accommodations for your disability, call our offices today for a free consultation.

 

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