Q: On my first day of work, my new employer gave me a packet of new-hire paperwork that included a detailed health questionnaire asking "have you ever had or have you ever been treated for" any of more than 40 health conditions. In addition to potentially serious illnesses, the list included relatively benign conditions such as high blood pressure, hernias, joint pain and varicose veins.
The questionnaire asks for details of any previous hospitalizations or surgeries, including date and location, and whether I have ever had surgery. It asks if I am currently taking any medications and requires me to list them. For any condition marked "yes," the form instructs me to provide a full explanation of the condition and any past or ongoing treatment.
I have no desire to share my personal health information with my employer and so went to our company's human resources representative. She told me the questionnaire was mandatory because it enabled the company to keep its workers' compensation insurance costs down. The final paragraph of the questionnaire, just above the signature line, indicates that any omission of facts from the questionnaire is cause for dismissal.
I have no health conditions that would interfere with the performance of my job, have no visible health conditions that would give my employer cause to ask these questions and haven't requested any accommodations under the Americans with Disabilities Act.
Do I have to complete this questionnaire?
A: According to several local employers, a number of workers' compensation professionals are asking their clients to have new and continuing employees complete these questionnaires to better handle later costly, fraudulent claims. Here's what you, and your employer, need to know.
According to the National Employment Law Institute's "Resolving ADA Workplace Questions," employers may ask employees "any disability-related questions and require any medical examinations" post-offer, as long as they don't ask for genetic information or violate a more restrictive state law. "For example, employers may ask about an individual's workers' compensation history, prior sick leave usage, illnesses, diseases, impairments, and general physical and mental health." Further, the "EEOC's Guidance specifically recognizes that disability-related questions and medical examinations at the post-offer stage do not have to be related to the job."
You, however, are beyond "post-offer" and already employed. This means that if your employer's questions are "disability-related," they have to be "job-related and consistent with business necessity." That's truly a gray area given that you've said that you can perform your job. Thus, your HR manager might want to revisit the timing of their questionnaire with their workers' compensation agent.
Further, "if the information is used is any way that impacts the terms of a disclosing employee's employment," says employment attorney-turned-Alaska-HR-consultant Rick Birdsall, "it may become an ADA violation."
Finally, Alaska workers' compensation attorney Eric Croft notes that "there actually is a reason your employer might need to know in writing if you have any prior medical conditions, including, as weird as it sounds, varicose veins. Alaska's compensation law provides a benefit to employers that hire an employee with certain medical conditions."
According to Croft, "If a work injury causes the employee to become disabled, and a pre-existing medical condition causes the effects of the work injury to be greater or last longer, the employer is partially protected, as it only has to pay the first two years of compensation. After that, the Second Injury Fund pays the remainder. This is intended to encourage employers to hire people even if they have certain medical conditions."
As an example, if an employer "hires an employee with a ruptured intervertebral disk and the employee falls at work and becomes disabled for life, the employer can show the prior ruptured disk combined with the work injury to make a greater disability than the employee would have had if s/he didn't have the prior condition. This could be a huge savings for an employer if the employee is permanently disabled. But the law requires that the employer hire or retain the employee with written knowledge of the prior condition. Otherwise, the purpose of the statute, to encourage hiring of people with medical conditions, is not met."