Q: An employee is asking to take medical leave. What sort of questions am I allowed to ask her?
A: Ask any HR generalist, and they will tell you that the Family and Medical Leave Act (FMLA) provides up to 12 weeks of job protection and continuation of health insurance benefits to employees who have a serious health condition. HR practitioners also know that they are permitted to seek information about an employee’s serious health condition to determine whether the employee qualifies for leave. But, how much can they ask, and what kind of medical questions are allowed?
The Department of Labor (DOL) recently provided some guidance to employers in the form of an investigation into the practices of several health system employers in Arkansas. The DOL concluded that, while it is acceptable to ask questions reasonably related to determining whether the employee qualifies for leave under FMLA, it is unacceptable to ask employees “intrusive and personal questions,” including asking employees to provide information outside the scope of the illness related to the request and to name prescribed medications. According to the DOL, such questions have a chilling effect on employees, who need to choose between revealing confidential medical information or foregoing needed leave.
Given this guidance, what types of questions are acceptable? As a general rule, be careful to limit questions to the medical condition at issue, and avoid questions about the employee’s general health. Permissible questions include, for example, the date the condition commenced, its expected duration, whether the condition caused an overnight stay at a hospital or other medical care facility, and whether the employee can perform any of her job functions due to the condition. Also, while it is permissible to ask a health care practitioner whether he has prescribed medication to the employee for the condition, it is not permissible to ask what medication was prescribed.
In addition, keep in mind that, if the employee does not qualify for leave under the FMLA – either because he is not eligible or has exhausted his leave – the employer still must consider whether leave is warranted under the Americans With Disabilities Act (ADA). Like the FMLA, the ADA allows employers to request information about an employee’s medical condition to the extent required to determine whether the employee qualifies for leave as an ADA accommodation.