can land you in hot water
By Tim Twigg and Rebecca Crane
Doctor: “Given how sick you’ve been, I think you should see a medical doctor about your illness before you return to work.”
Employee: “It’s no big deal. I’m fine, really, and I’ve only missed two days of work this month.”
Doctor: “In fact, I’d like to get a note from your medical doctor about your condition before you return.”
On the surface this seems like a very caring request. You think you’re coming across as one who cares about your employee’s welfare. Of course, it could also be that you’re tired of this particular employee’s absenteeism, and believe that requesting a note will somehow get this employee to understand that he or she is skating on thin ice.
What is not well known within the dental industry is that this simple request could constitute a request for a medical exam and, believe it or not, medical exams are regulated and restricted by law.
Permissible medical exams
Any request for medical information in order for an employee to begin work or resume work is considered a medical exam. Requests for this kind of information are restricted under the Americans with Disabilities Act (ADA), which protects people from illegal discrimination based on disabilities or perceived disabilities. Gaining access to this information can result in the employer knowing about a disability and possibly using this as a basis for employment decisions, which can be illegal.
The ADA breaks down the rights of employers to request this information in two distinct ways — pre-hire and post-hire.
At the pre-hire stage, requests for medical exams or medical information are strictly forbidden unless three conditions are met:
- A conditional offer of employment has been made to the applicant before testing occurs (call us for a copy of our Conditional Offer of Employment Letter [Form No. 107A]).
- All applicants selected for hire are subjected to the medical exam.
- All information obtained by the medical exam or medical request is treated confidentially.
Once the employee has been hired, medical exams or requests for medical information can be done only when such a request is job-related and consistent with business necessity. You may also make such requests under the ADA’s “direct threat” provision (i.e., the employee’s health status poses a “direct threat” to the safety of other employees or just the employee).
Situations that might legitimately warrant a medical exam should be evaluated on a case-by-case basis — there is no one-size-fits-all for medical exams or information requests. While this is not a complete list, possible valid reasons for requesting medical exams or information may include:
- An employee whose job involves heavy lifting complains of having a hernia and is not getting medical treatment. Reason? Employee poses a direct threat to himself.
- An employee has been on leave for two months for a non-work-related injury and is ready to return to work. This type of medical request is usually called “fitness for duty.” Reason? Employer must be sure employee can now, post-injury, fulfill his or her essential duties.
Essential job duties
When requesting information about someone’s medical history, the inquiries must be based on a person’s ability to perform his or her “essential job functions.” Very broad questions into someone’s medical history can lead to legal trouble. Courts have said that inquiries must be “no broader or more intrusive than necessary” to ensure the employee can safely do his or her job.
A good business practice is to send the medical professional a copy of the employee’s up-to-date job description, which should include a clear and objective list of the essential functions of the job. This will help the medical doctor make sound decisions about the employee’s work capabilities.
Cost of medical exams
If you are requesting, and essentially requiring, an employee to see a medical professional and get a medical exam, you are obligated to pay for the employee’s time spent fulfilling that request. That means travel to and from the doctor’s office, waiting time, and time spent actually receiving the examination or treatment. In addition, you may also have to foot the bill for the employee’s out-of-pocket expenses, including the cost of the exam. Check with your state’s law for more clarification.
Be sure your requests for medical information or exams follow the guidelines listed to adequately support your request as being legitimate and nondiscriminatory. For good measure, document the reasons for the request just in case your intentions are questioned at a later date.
Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit the website at www.bentericksen.com.
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