EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Disability-Related Inquiries and Medical Examinations, Confidentiality of Medical Information
May 4, 2001
This is in response to your letter dated January 22, 2001, to the U.S. Equal Employment Opportunity Commission's (EEOC) Chicago District Office regarding the Americans With Disabilities Act of 1990 (ADA or the Act). We apologize for our delay in responding. You asked whether an authorization form that asks an applicant to "authorize the employer, any consumer reporting agency, or other outside service company engaged by the employer now or subsequently to obtain, prepare, use and furnish information concerning the applicant's health" is per se a violation under the ADA.
As you know, the ADA prohibits employers from requiring medical examinations or asking questions regarding the existence, nature, or severity of applicants' disabilities before extending an offer of employment. This offer may be conditioned on the applicant's meeting an employer's legitimate medical criteria. These prohibitions are meant to ensure that an individual's non-medical qualifications are considered before his or her medical condition is evaluated. They also ensure that, if a job offer is withdrawn after a medical examination or inquiry, the applicant is aware that the reason for withdrawal relates to his or her medical condition, and not to non-medical qualifications.
An employer may require a medical examination or ask disability-related questions after it has made a conditional offer of employment and before the applicant begins work duties, if it does so for all entering employees in the same job category. The job offer must be a "real" offer. This means that the employer has evaluated all non-medical information it reasonably could have obtained and analyzed before making the offer. Further information on this issue can be found in the enclosed policy guidance entitled, "Preemployment Disability-Related Questions and Medical Examinations."
Additionally, an employer may only ask its employees disability-related questions or require medical examinations that are "job-related and consistent with business necessity." This means that the employer has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition. For more information on this issue, please refer to the enclosed policy guidance concerning "Disability-Related Inquiries and Medical Examinations of Employees."
Finally, the confidentiality provisions of the ADA require employers to keep confidential all information relating to an individual's medical condition or health, except in certain very limited situations. See 42 U.S.C. § 12112(d)(3) (1994), and in the regulations, 29 C.F.R. § 1630.14(c) (2000).
The authorization form essentially allows employers to make disability-related inquiries, conduct medical examinations, and/or disseminate confidential medical information about an applicant or employee without limitation. Thus, the form, which is to be signed by applicants, would allow an employer to ask disability-related questions or require medical examinations of an applicant before making a conditional offer of employment, when such examinations and inquiries are strictly prohibited. The form would also apparently allow for disability-related inquiries and medical examinations of employees, even if they are not job-related and consistent with business necessity. Finally, the confidentiality provisions of the ADA strictly limit the parties to whom an employer can disclose an employee's medical information, and certainly do not allow for the broad sharing of an employee's medical information contemplated by the authorization form. Thus, an employer would violate the ADA if it used this authorization form to obtain disability-related information or conduct a medical examination of an applicant or employee, or to disclose medical information, under circumstances other than those specifically permitted by the ADA.
You ask whether the authorization form constitutes a "per se violation of the ADA." We understand you to be asking essentially whether an employer will violate the ADA by requiring someone to sign the form, whether or not it actually uses the form to obtain or disclose medical information in violation of the ADA. The Commission has not taken a position on this specific issue. However, the form's broad language, at the very least, raises serious questions about how the employer is in fact using the form. We strongly recommend that you do not distribute this form through your office.
I hope that this information has been helpful to you. Please note, however, that this letter is an informal discussion of the issues raised by you and is not an official opinion of the EEOC. In addition, our failure to address other matters that may have been presented should not be construed as agreement with statements or analysis related to those matters.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division
cc: John P. Rowe, Chicago District Office, EEOC
This page was last modified on April 27, 2007.
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