Few people want to open up their medical files to their boss for review. There are times, however, when an employer can ask about sensitive details of an employee’s medical (or psychological) conditions. Under Ohio and federal disability discrimination law, whether an employer is allowed to ask such personal and intrusive questions depends on when and why the employer is asking.
As a general rule, before extending an offer of employment, an employer may not ask an applicant whether she has a disability, what medications she takes, or any other similar questions about the applicant’s health. An employer may not require an applicant take any sort of medical or psychological exam either. Instead, the employer may ask about the applicant’s ability to perform the functions of the job, either with or without a reasonable accommodation. For example, a taxi cab company hiring a driver may ask an applicant whether she has a valid driver’s license, but may not ask whether the applicant has a visual impairment.
After making a job offer, an employer may condition employment on a medical or psychological exam or inquiry, but only if the employer makes all applicants for the same type of job submit to the exam or inquiry. The employer must keep any responsive information it receives in a confidential medical file that is maintained separate from the employee’s personnel file. Access to the medical file by supervisors must be restricted except in a very few specific circumstances.
Employers may not ask current employees about their medical conditions or ask them to take a medical examination unless the inquiry or exam is job-related and consistent with business necessity. The purpose of this rule is to ensure that before an employer intrudes on an employee’s privacy there is a legitimate business reason to do so. For example, if an employee starts using more sick leave than normal or appears sickly, the employer cannot ask the employee if she has HIV, cancer, or some other disability. Nor can the employer force the employee be tested for disease, unless the employer shows that testing is necessary for the employee’s performance of important job functions.
It is unlawful disability discrimination for an Ohio employer to make a prohibited medical inquiry of its applicants or employees. Whether asking about an employee’s or an applicant’s medical condition is unlawful depends on both the timing of the inquiry and its purpose.