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Medical Records and the Americans

Medical Records And The Americans With Disabilities Act Of 1990

The Americans with Disabilities Act of 1990 (ADA) prohibits private and state employers with 15 or more employees from improperly discriminating against disabled workers because of their disabilities. Under the ADA, employees may generally not refuse to hire or take other adverse employment actions against disabled workers who could perform the essential functions of a job with reasonable accommodation.

Because the ADA was designed to grant more employment opportunities to disabled workers who may be excluded from consideration merely because of their disabilities, it makes it illegal for employers to ask employees specific medical questions during an employment interview. It also bans requests for medical examinations before a conditional offer of employment is extended. In a job interview, employers may only ask whether an applicant is able to perform the functions of the job. They may not ask whether the applicant has any medical condition that would interfere with the applicant’s performance.

Once a conditional offer of employment is granted, an employer may ask medical-related questions of a potential applicant or request a medical examination, but only if such questions and requests are made of all potential employees. Once an employee is hired, an employer may only ask medical-related questions when the employer has a reasonable belief, based upon objective evidence, that a medical condition will prevent an employee from performing the essential functions of the job.

Any medical records that are collected during the hiring process, as well as any other medical records that are collected during the course of a worker’s employment (for example, to support a leave of absence) must be carefully guarded by employers. They must remain confidential at all times. Under the ADA, an employee’s request for reasonable accommodation is considered a medical record, subject to special confidentiality requirements. Employers may only disclose medical information regarding their employees under the following limited circumstances:

* to supervisors and managers so that they may provide a reasonable accommodation

* to first aid and safety personnel if the medical condition may require special emergency or medical treatment

* to persons investigating compliance with the ADA and similar state laws

* to state workers’ compensation offices and related entities so that they may evaluate workers’ compensation claims

To ensure compliance with confidentiality requirements, the EEOC directs employers to retain medical records in separate files, accessible only by persons entitled to view the records. If the records are stored electronically, special passwords should protect these files.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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