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Confidentiality 101: What An Employer May And May Not Do Or Disclose Under The ADA

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Under the Americans With Disabilities Act and similar laws, confidentiality of your physical and mental healh condition is promoted in two ways:

  • Employers and prospective employers are generally prohibited from asking about your health condition or health history
  • If an employer learns about your health condition, the information must be kept confidential.  The law goes so far as to require that this information must be kept in a file which is separate from your standard employee file. 

During the hiring/interview process:  An employer may not ask questions about your health before offering you a job. Even then, questions can only be asked if they’re relevant to your ability to perform a certain job, and if they are asked of everyone who applies for the job.

After hiring you:

An employer may not : 

  • Explain to co-workers that you have a health condition even if you look sick, lose weight or appear fatigued. Although your co-workers and others in the workplace may be concerned about your health, an employer may not reveal your health condition.
  • Explain to other employees that their co-worker is allowed to do something that generally is not permitted because of a health condition. For instance, an employer cannot explain that you are permitted to work at home or take periodic rest breaks because of a health condition.
  • Explain to other employees why you are absent from work.
  • Ask whether a health condition is affecting your ability to do your job. An employer may only ask questions or require an employee to have a medical examination when it has a legitimate reason to believe that a medical condition may be affecting your ability to do your job, or your ability to do your job safely. Poor job performance, however, often is unrelated to a medical condition and should be handled in accordance with an employer's existing employment policies.
  • The ADA contains narrow exceptions for disclosing specific, limited information. Information about your health may be provided to:
    • Supervisors and managers
    • First aid and safety personnel
    • Government officials investigating compliance with the Americans With Disabilities Act.
    • State workers' compensation offices, state second injury funds, or workers' compensation insurance carriers in accordance with state workers' compensation laws.
    • Insurers for insurance purposes.

An Employer May 

  • Disclose your health condition to your supervisor or manager if necessary to provide an accommodation.
  • Explain that it protects employee privacy and complies with all federal and state laws. An employer may also include such information in the employee handbook.

NOTE: If you tell your employer about your health condition, note in your Work Journal who you told, when, and whatw his or her reaction was. 

For information, see:

For information about additional legal protections at work, click here.


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