What Questions Can an Employer Ask You About Health? Legal Guide
Navigating health-related questions during the hiring process and employment can be confusing. You might wonder: Can employers ask about my medical history? Do I have to disclose a disability? What if they ask about prescription medications or recent surgeries?
Understanding your rights is essential for protecting your privacy and ensuring you’re treated fairly. In the United States, several federal laws—including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA)—regulate what employers can and cannot ask about your health.
This comprehensive guide explains the legal framework around health questions in employment, what’s permitted at different stages of the hiring process, your rights as an employee, and how to handle inappropriate inquiries.
Important disclaimer: This article provides general information about employment law and is not legal advice. Employment laws vary by state and circumstances. Consult with an employment attorney for advice specific to your situation.
The Legal Framework
Several federal laws govern health questions in employment contexts.
Americans with Disabilities Act (ADA)
The ADA prohibits discrimination against qualified individuals with disabilities and restricts when and how employers can ask about medical conditions.
Key provisions:
- Employers cannot ask about disabilities before making a job offer
- Medical examinations can only be required after a conditional job offer
- Medical information must be kept confidential
- Employers must provide reasonable accommodations
Applies to: Employers with 15 or more employees
Genetic Information Nondiscrimination Act (GINA)
GINA prohibits employers from using genetic information in employment decisions.
Key provisions:
- Employers cannot request genetic information
- Family medical history cannot factor into hiring decisions
- Genetic information must be kept confidential
- Discrimination based on genetic predisposition is prohibited
Applies to: Employers with 15 or more employees
HIPAA (Health Insurance Portability and Accountability Act)
While HIPAA primarily governs healthcare providers, it affects employment in specific ways.
Key provisions:
- Employers generally cannot access your medical records without consent
- Health information from employer-sponsored health plans has privacy protections
- HIPAA doesn’t directly regulate employer questions, but protects record privacy
State Laws
Many states have additional protections:
- Some have broader definitions of disability
- Some have lower employer thresholds
- Some provide additional privacy protections
- Some have specific protections for certain conditions
Check your state’s specific employment laws for additional protections.
Pre-Offer Stage: What Employers Cannot Ask
Before extending a job offer, employers have significant restrictions on health-related questions.
Generally Prohibited Questions
During interviews and before job offers, employers CANNOT ask:
About disabilities:
- “Do you have any disabilities?”
- “Have you ever been diagnosed with [condition]?”
- “Do you have any physical or mental impairments?”
About medical history:
- “What medications are you currently taking?”
- “Have you ever had surgery?”
- “Have you ever been hospitalized?”
- “Do you have a history of mental health issues?”
About workers’ compensation:
- “Have you ever filed a workers’ compensation claim?”
- “Have you ever been injured on the job?”
About sick leave usage:
- “How many sick days did you take at your last job?”
- “How often do you get sick?”
About genetic information:
- “Does anyone in your family have [condition]?”
- “Have you had genetic testing?”
- “What is your family medical history?”
About pregnancy and family planning:
- “Are you pregnant?”
- “Do you plan to have children?”
- “How would pregnancy affect your work?”
What Employers CAN Ask Pre-Offer
Employers may ask about ability to perform job functions:
Legitimate questions:
- “Can you perform the essential functions of this job with or without accommodation?”
- “This job requires lifting 50 pounds regularly. Can you meet this requirement?”
- “This position requires standing for 8-hour shifts. Can you do that?”
- “Are you able to work overtime when required?”
These questions focus on job requirements, not medical conditions.
The Job Function Focus
The key distinction is:
- Legal: Asking whether you can do the job
- Illegal: Asking about medical conditions that might affect your ability
Example of illegal approach: “Do you have a bad back that might prevent you from lifting?”
Example of legal approach: “This job requires lifting 50 pounds regularly. Are you able to meet this requirement with or without accommodation?”
Post-Offer Stage: Conditional Job Offers
After making a conditional job offer, employers have more latitude—but with important restrictions.
What Employers CAN Do After an Offer
Once a conditional offer is extended, employers may:
Require medical examinations:
- Physical exams
- Drug testing
- Psychological evaluations (if job-related)
Ask medical questions:
- About current health conditions
- About medication use
- About medical history
- About disabilities
Request medical documentation:
- Doctor’s notes
- Medical records
- Disability verification
Critical Restrictions Still Apply
Even after an offer, important protections remain:
Non-discrimination requirement:
- Medical requirements must apply equally to all entering employees in that job category
- Offer can only be withdrawn based on job-related, business-necessity reasons
- Medical information cannot be used to discriminate
Confidentiality requirements:
- Medical information must be collected and maintained separately from personnel files
- Limited access to medical information
- Cannot be shared inappropriately
Reasonable accommodation obligation:
- If exam reveals a disability, employer must consider reasonable accommodations
- Cannot automatically withdraw offer because of disability
- Must engage in interactive process
When Offers Can Be Withdrawn
Employers can withdraw conditional offers based on medical information only when:
- The condition prevents performing essential job functions even with reasonable accommodation
- The condition poses a direct threat to health or safety that cannot be eliminated
- The condition is job-related and consistent with business necessity
During Employment: Ongoing Rights
Health privacy rights continue throughout your employment.
Employer Medical Inquiries During Employment
Employers generally cannot make medical inquiries unless:
Reasonable belief of inability to perform: If an employer has reasonable, objective evidence suggesting an employee cannot perform essential functions, they may:
- Request medical information related to the concern
- Require fitness-for-duty examinations
- Seek documentation of ability to return after leave
After requesting accommodation: If you request a disability accommodation, employers may:
- Ask for documentation of the disability
- Request information about functional limitations
- Seek information about needed accommodations
For safety-sensitive positions: Some positions have ongoing medical requirements:
- DOT-regulated positions (truckers, pilots)
- Public safety positions
- Positions where impairment poses significant risk
What Employers Cannot Do During Employment
Even for current employees, employers cannot:
- Conduct random medical inquiries not related to job function
- Require genetic testing
- Access your personal medical records without consent
- Discriminate based on medical conditions
- Retaliate for medical leave usage
- Share your medical information inappropriately
Specific Situations and Questions
Let’s address common specific scenarios.
Drug Testing
General rules:
- Pre-employment drug testing is generally legal
- Random testing is permitted in many contexts
- Testing after workplace accidents is typically allowed
- Reasonable suspicion testing is permitted
Prescription medications:
- Employers cannot ask what prescriptions you take pre-offer
- Post-offer, you may need to disclose medications that could affect job performance
- ADA protects employees taking legally prescribed medications
- State laws vary on medical marijuana
Mental Health Questions
Mental health conditions are protected under the ADA.
Pre-offer: Employers cannot ask about mental health history, psychiatric treatment, or psychological conditions.
Post-offer: May inquire if it relates to job functions, but must treat mental and physical conditions equally.
During employment: Cannot discriminate based on mental health conditions; must consider accommodations.
COVID-19 and Infectious Disease Questions
The pandemic created unique circumstances:
What employers may ask:
- Whether you currently have COVID-19 symptoms
- Whether you’ve tested positive recently
- Whether you’ve had close contact with infected individuals
What they cannot do:
- Ask about general immune system conditions
- Discriminate based on underlying health conditions
- Force disclosure of detailed medical information
Vaccination inquiries: Current guidance allows employers to:
- Ask about vaccination status
- Require vaccination in many circumstances
- Require proof of vaccination
Consult current EEOC guidance as this area continues to evolve.
Workers’ Compensation History
Pre-offer: Employers cannot ask about workers’ comp claims
Post-offer: May ask about prior workers’ comp claims, but cannot use this as basis for discrimination
During employment: Cannot retaliate for filing workers’ comp claims
Pregnancy
Pregnancy is not a disability under the ADA, but is protected under:
- Pregnancy Discrimination Act
- Family and Medical Leave Act
- State laws
Employers cannot:
- Ask about pregnancy or plans to become pregnant
- Make employment decisions based on pregnancy
- Force employees into leave due to pregnancy
Employers must:
- Treat pregnancy like other temporary conditions
- Provide reasonable accommodations for pregnancy-related limitations
- Allow leave for pregnancy and childbirth under FMLA (if eligible)
How to Handle Inappropriate Questions
What should you do if an employer asks a prohibited question?
In the Moment
Option 1: Redirect Steer the conversation back to job qualifications: “I’m not sure that’s relevant to the job, but I can tell you I’m fully capable of performing all the essential functions.”
Option 2: Ask for Clarification “I want to make sure I understand what you’re asking. Is there a specific job function you’re concerned about?”
Option 3: Decline to Answer “I’d prefer to focus on my qualifications for the position. Is there a specific requirement you’d like me to address?”
Option 4: Answer Indirectly Focus on capability rather than condition: “I can assure you I’m able to meet all the requirements of this position.”
After the Interview
If you believe illegal questions were asked:
- Document what was asked and when
- Note who was present
- Consider whether you want to proceed with the employer
- You may file a complaint with the EEOC if you believe discrimination occurred
Documenting Discrimination
If you suspect health-based discrimination:
- Keep written records of all incidents
- Note dates, times, witnesses, and specific statements
- Preserve any written communications
- Consult with an employment attorney
- File complaints with appropriate agencies within time limits
Employer Responsibilities
Understanding employer obligations helps you recognize violations.
Confidentiality Requirements
Employers must:
- Keep medical information in separate, confidential files
- Limit access to medical information
- Not share medical information inappropriately
- Maintain confidentiality of accommodation requests
Reasonable Accommodation Process
If you have a disability and need accommodation:
Interactive process: Employers must engage in good-faith dialogue about potential accommodations
Reasonable accommodations may include:
- Modified work schedules
- Physical workspace modifications
- Assistive technology
- Job restructuring
- Leave for medical treatment
Employers need not provide accommodations that cause:
- Undue hardship (significant difficulty or expense)
- Elimination of essential job functions
Non-Retaliation
Employers cannot retaliate against employees who:
- Request accommodations
- File discrimination complaints
- Report violations
- Participate in investigations
Your Disclosure Choices
You have choices about disclosing health information.
When You Must Disclose
You may need to disclose when:
- Requesting reasonable accommodation
- Answering lawful post-offer inquiries
- Participating in fitness-for-duty evaluations
- When a condition poses direct safety threats
When Disclosure Is Optional
You typically don’t need to disclose:
- During pre-offer interviews
- Conditions that don’t affect job performance
- Conditions that aren’t apparent
- Medical history unrelated to current abilities
Strategic Considerations
Think carefully about disclosure:
Potential benefits of disclosure:
- Getting needed accommodations
- Explaining any job-affecting limitations
- Building trust with employer
- Protecting yourself legally if issues arise
Potential risks:
- Possible (illegal) discrimination
- Changed perceptions or treatment
- Privacy loss
- May not be necessary
Tools like 0portfolio.com can help you present your professional qualifications effectively, ensuring employers focus on your capabilities rather than making assumptions about limitations.
Filing Complaints
If you believe your rights were violated:
EEOC Complaints
The Equal Employment Opportunity Commission handles ADA and GINA complaints:
Time limits: Generally must file within 180 days (300 days if your state has an enforcement agency)
Process:
- File charge with EEOC
- EEOC investigates
- EEOC issues findings
- May pursue resolution, litigation, or right-to-sue letter
State Agencies
Many states have fair employment agencies with:
- Potentially broader protections
- Different deadlines
- Additional remedies
Private Legal Action
After exhausting administrative remedies, you may pursue:
- Private lawsuit
- Remedies including back pay, reinstatement, compensatory damages
- Attorney fees if successful
Consult an employment attorney for specific guidance.
Conclusion
Understanding what employers can and cannot ask about your health empowers you to protect your privacy while pursuing employment opportunities. The key principles to remember:
Before a job offer:
- Employers cannot ask about disabilities, medical history, or genetic information
- They can ask whether you can perform essential job functions
After a conditional offer:
- Employers can require medical examinations and ask health questions
- These must be applied consistently and cannot be used to discriminate
- Offers can only be withdrawn for job-related, business-necessary reasons
During employment:
- Medical inquiries must be job-related and consistent with business necessity
- Your medical information must be kept confidential
- You cannot be discriminated against or retaliated against based on health
If you face inappropriate questions or believe you’ve experienced discrimination, document everything and consider consulting with an employment attorney or filing a complaint with the appropriate agencies.
Your health information is private, and the law provides significant protections to ensure employment decisions are based on your qualifications and abilities—not your medical history.
