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Under COVID-19 & The Americans with Disabilities Act, Can My Employer Request Employee’s Medical Information?

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The Equal Employment Opportunity Commission (EEOC) is the agency tasked with enforcing federal employment discrimination laws, commonly referred to as the Equal Employment Opportunity laws (EEO laws). One such law is the Americans with Disabilities Act (ADA). Generally speaking, the ADA prohibits discrimination on the basis of disability in employment, public accommodations, and government programs, services and activities.

The focus of this blog post is how employers can comply with the ADA’s requirements related to handling employees’ medical information while taking steps to ensure the safety of the workplace during the COVID-19 pandemic. The EEOC’s recently issued guidance in this area is summarized below. For more information, you can review the EEOC’s guidance here and here.

How should employers store COVID-19 screening information and other medical information?

As a general matter, the ADA requires that all medical information of employees be stored separately from employee personnel files to limit access to the confidential information contained therein. Such information must be collected and maintained on separate forms and in separate medical files.

The ADA’s requirements are no different when employers collect confidential information due to COVID-19. Thus, all information obtained through disability-related inquiries or medical examinations – including temperature check logs, screening questions, fitness-for-duty notes, etc. – must also be stored as a confidential medical record. However, an employer need not create new “COVID-19 files” and may store all COVID-19 related medical information in existing medical files.

Is it ever appropriate to disclose an employee’s medical information?

When an employer learns that an employee has COVID-19, the employer may disclose the employee’s identity to the relevant public health agency. In the case of a temporary staffing agency or contractor who places an employee in a workplace, the agency or contractor may notify the relevant employer if the employee has COVID-19. This is because the employer may need to determine who the employee came into contact so as to limit the spread in the workplace.

If an employee has COVID-19, it may also be permissible for an employer to – without disclosing the employee’s identity – inform the employee’s coworkers that one of their colleagues has come down with COVID-19. This is because employees make informed decisions and assess the risk that the workplace may pose to them based on their own preexisting medical conditions.