How Strict is the ADA’s Requirement that Medical Information Be Kept Separate

Thequestion sometimes arises, “How strict is the ADA’s requirement that medicalinformation be kept separate from personnel records?”

Verystrict, according to Equal Opportunity Employment Commission Assistant LegalCounsel Christopher J. Kuczynski. An employer asked whether a suspension recordin an employee’s personnel file might contain a reference to additional medicalinformation that could be made available on need-to- know basis. Kuczynskiwrote that this procedure would be out of compliance with ADA.

TheADA requires that medical information be kept in confidential medical files,not in personnel files. Under limited exceptions to ADA confidentialityrequirements, managers and supervisors may be made aware of necessary workrestrictions or accommodations. However, stated Kuczynski, disclosure on aneed-to-know basis is broader than the ADA’s strict requirement that medicalinformation be kept confidential with limited exceptions. The situationdescribed in the query therefore exceeds the allowable exceptions, he opined.

Anotherinquirer asked EEOC whether it is a violation of the ADA to ask job applicantsto release information from former employers, credit bureaus and state workers’compensation commissions as a part of the application process. Assistant LegalCounsel Kuczynski replied that if an employer used an applicant’s executedrelease to obtain disability-related information prior to making a conditionaloffer of employment this would violate the ADA.

Itis the Commission’s position, he wrote, that information about occupationalinjury or illness and workers’ compensation claims is disability-related, so anemployer may request such information from applicants only after making anoffer of employment. Kuczynski further stated that employers are alsoprohibited from obtaining such information at the pre-offer stage eitherdirectly from former employers and workers’ compensation offices, or from thirdparties such as employer information services.