From the desk of Melanie Whetzel, M.A., CBIS, Lead Consultant – Cognitive/Neurological Team
JAN consultants often receive questions concerning the confidentiality of medical information that relates to a person’s disability, particularly a hidden one. How much information are coworkers allowed to have? And under what circumstances? Will an employee with a hidden disability be required to share a hotel room with a coworker if it breaches confidentiality?
Under the Americans with Disabilities Act (ADA), medical documentation has to be kept confidential. According to the Equal Employment Opportunity Commission (EEOC), information from all medical examinations and inquiries, as well as accommodation information, must be kept in a separate medical file in a locked cabinet, apart from the location of personnel files, with a specific person or persons designated to have access to it. The only information that might involve coworkers is: first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuation. Coworkers should not be given confidential medical information.
But what happens when an employee with a hidden disability is required to travel and share a room with a coworker? Is it a violation of the ADA when the sharing of a hotel room may lead to the disclosure of a disability? The answer is that it could be in some cases. The concern for employers would be that ADA confidentiality rules may create potential liability if the employer is forcing the person, in effect, to reveal his disability by sharing a room. A couple examples of when this might happen are: an employee uses a CPAP machine for a sleep disorder or an employee with diabetes uses a refrigerator for insulin storage.
What options do employers have when faced with this situation? The two main options are providing a private room while traveling or allowing the employee to forgo the travel altogether.
Under the ADA, employers get to choose among effective accommodations and do not have to provide any accommodation that poses an undue hardship. Regarding a private room, the employer typically would look at the cost of the room when determining undue hardship. When looking at whether the employee can forgo the travel, the employer would look at the essential functions of the individual’s position. Can an accommodation be provided that would allow the employee to perform the duties of his/her position by using technologies such as teleconferencing in lieu of traveling? If travel is determined to be an essential function of the job and no effective accommodation can be made, reassignment may be a solution.