Following up on my recent blog on ADA confidentiality requirements in the workplace, here are some common questions and answers that employers and/or employees may encounter.
Q. Can an individual voluntarily disclose their own medical information to persons beyond those that the employer can disclose?
A. Yes, as long as it's really voluntary. The employer cannot request, persuade, coerce, or otherwise pressure the individual to get them to disclose medical information.
Q. Does the employer's confidentiality obligation extend to medical information that an individual voluntarily tells the employer ?
A. Yes.
Q. Does the confidentiality obligation end when the person is no longer an applicant or employee?
A. No, an employer must keep medical information confidential even if someone is no longer an applicant (for example, they weren't hired) or is no longer an employee.
Q: What is an employer’s proper response to employees who have questions about why a coworker may be receiving what they perceive to be special treatment?
A: One response is to emphasize its policy of assisting any employee who encounters difficulties in the workplace. Also point out that many workplace issues encountered by employees are personal. In these circumstances, it is the employer's policy to respect employee privacy. An employer may also reassure the employee asking the question that their privacy would similarly be respected.
It may be helpful before such questions are raised to provide all employees with information about various laws that require employers to meet certain employee needs. For example, the ADA and the Family and Medical Leave Act, while also mentioning that these laws require confidentiality. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers. Employers may wish to explore these and other alternatives with unions because they too are bound by the ADA's confidentiality provisions. Union meetings and bulletin boards may be further avenues for such educational efforts.
Q. What about service animals or emotional support animals as an accommodation?
One best practice is to ask the employee using the service animal how they would like to handle the situation of informing (or not informing) others about the presence of the dog and how to interact appropriately before bringing the dog to work. As is often the case, the employee being accommodated may be the best source for input and information. Note that the employee who uses a service dog is free to independently (and voluntarily) share information about their animal and need for accommodation with others in the workplace.
However, if an employee is uncomfortable with the employer sharing information about the service or emotional support dog and the employee prefers not to share information, then it is the employer’s obligation to protect the confidentiality of the employee.
Q. But doesn’t the supervisor, manager, or other personnel involved in the provision of the accommodation need to know some information about the accommodation?
A. Yes – but only those who are on a “need-to-know” basis should have this information.
For example, a manager or supervisor who is responsible for implementing the use of a service animal in a particular job site may need to know. These “need-to-know” personnel will need to know how to integrate the service animal into the workplace, including where the service animal will relieve itself or if the service animal will be included in meeting spaces. However, it could be a breach of confidentiality for employers to reveal why the service or emotional support dog is needed.
Q. So, what about the employee’s co-workers? What information can an employer share with them?
A. We know that employers are not permitted to share disability-related information with co-workers. While employers have no particular obligation to inform others that a dog will be allowed on the premises, there are dynamics in the workplace where providing limited information is important. For instance, in the event a co-worker is afraid of dogs or has an animal allergy, or perhaps when questions arise about why a “no animals” policy is being modified.
Q. How then does an employer communicate that a dog will soon be entering the workplace?
A. Employers should be cautious about using the terms “service” or “emotional support” dog when announcing that a dog will be allowed on the premises. Saying that a dog is a service animal and not a pet reveals that the employer is allowing the animal onto its premises as a reasonable accommodation. This, in turn, reveals that the employee using the service animal has a disability, even if the disclosure does not reveal the nature of the disability.
Employers who feel the need to share that a dog will be on the premises can share this information with limited individuals in the employee’s immediate work area. These co-workers might be informed that a dog will be present, that it has been approved by the employer, and who to contact if someone has an issue or concern regarding the matter. This approach is informative without revealing too much information. Additionally, it provides information to co-workers about who to contact if, for instance, they have an allergy or a fear of dogs, so these issues can be resolved privately.
Q: What about an employee with a hidden disability who is required to travel and share a room with a coworker? What if the sharing of a hotel room may lead to the disclosure of a disability?
A. The concern for employers would be that ADA confidentiality rules may create potential liability by forcing the person to reveal his disability by sharing a room. Examples of when this might occur are: an employee uses a CPAP machine for a sleep disorder; or an employee with diabetes uses a refrigerator for insulin storage.
Q. What options do employers have when faced with this situation?
A. The employer may provide a private room while traveling or allow the employee to forgo the travel altogether.
Thanks to Job Accommodation Network for providing these helpful questions and answers. More information can be found at: