What do you have to disclose to an employer?

disclose to an employerMany individuals decide to work through cancer treatment or return to work, while still managing side effects of cancer treatment with medications.  Trying to figure out what has to be disclosed to employers or potential employers is a common concern for individuals.  For more general information about disclosure and privacy, check out our Quick Guide to Disclosure, Privacy, and Medical Certification Forms.

In this blog we wanted to focus on the issue of disclosing medications to an employer.  As with most situations there has to be a balance between the interests of the employer and those of the employee.  An employee may have a legitimate desire to keep the medications they are taking confidential.  An employer may have a legitimate need to know what medications its employees are taking. For example, a school probably wouldn’t want their school bus drivers taking prescription pain medications that would hinder their ability to drive. So, what does the law allow?

The Americans with Disabilities Act (ADA) protects the privacy of medical information of eligible individuals in the workplace. The ADA includes specific rules about how much information about your medical condition you have to share with an employer or potential employer, and when.

Under the ADA, employers cannot require blanket disclosure of prescription medications being taken by all employees. However, there are some exceptions based on where you are in the hiring process and the particular type of job you do.

Prior to receiving an employment offer, potential employers are not legally allowed to ask any questions about your medical condition or general health. After a job offer has been made, employers are allowed to ask you questions about your health history or to complete a medical exam, but only if they would be required of anyone entering a similar job. Furthermore, employers are not allowed to take back the job offer based on the results of a medical exam, unless the results show that you cannot perform the essential functions of that job, with or without a reasonable accommodation.

Once you are working for an employer, you can only be asked to complete a medical exam or questions about your health history, when it is “job-related and consistent with business necessity” or if there is a “direct threat.”

The Equal Employment and Opportunities Commission (EEOC), the federal agency that enforces the ADA, has issued guidelines providing some additional information on these exceptions. In these guidelines, the EEOC uses the example of a police officer. Because there is a significant safety risk involved with a police officer using certain prescription medications, an employer may be able to demonstrate that asking a police officer about his/her prescription drug use is consistent with business necessity. On the other hand, it probably isn’t reasonable to ask a firefighter, who acts in a purely administrative role, about her medications.

Unfortunately, the EEOC doesn’t provide a list of other occupations that would fall within this exception of being “job-related and consistent with business necessity.” So it is unclear, for example, if a nurse or construction worker who operates heavy machinery would have to disclose his/her use of morphine.

The EEOC does point out that there are other laws that might apply to certain employees, such as interstate bus and truck drivers, airline pilots and flight attendants, and mine workers.

If you have access to an Employee Assistance Program (EAP) at work, and you contact an EAP counselor, the counselor may ask you questions about your medical conditions, but only if the counselor: 1) does not work for or on behalf of the employer; 2) is obligated to shield any information the employee reveals from decision makers; and 3) has no power to affect employment decisions.

Resources:

Choosing to share information about your medical condition and the laws that protect your privacy or require disclosure can seem complicated.

For more information about the ADA, visit www.eeoc.gov or read our Quick Guide to the ADA.

For information about disclosure and privacy, read our Quick Guide to Disclosure, Privacy, and Medical Certification Forms.