Wednesday, February 21, 2007

The Post-Standard (Syracuse, New York), February 12, 2007, Monday

Copyright 2007 Post-Standard

All Rights Reserved

All Rights Reserved.

The Post-Standard (Syracuse, New York)

February 12, 2007 Monday

FINAL EDITION

SECTION: CNY; Pg. D8

HEADLINE: YOUR HEALTH RIGHTS AT WORK

SERIES: Daily Dose

BYLINE: By Jim O'Hara Staff writer

BODY:

With health insurance costs for businesses rising and companies passing on more costs to employees, both sides might be wondering just what kind of information the boss can ask for about an employee's health.

Mairead E. Connor, currently of counsel to the Chamberlain D'Amanda Oppenheimer & Greenfield law firm, has spent the past 17 years working as a lawyer in the Syracuse area representing unions and individual employees in discrimination claims and employment-related matters.

A former teacher, Connor graduated summa cum laude from the Syracuse University College of Law and attended graduate school at the New York State School of Labor and Industrial Relations at Cornell University.

Here, she offers some insights on the issue.

For a job applicant:

Federal law - the Americans with Disabilities Act - prohibits companies from considering health issues or medical issues before the offer of employment, she said.

A company may not ask about a potential worker's medical history, family medical history, past workers compensation claims or any potential disabilities prior to the offer of a job.

Despite that, questions about past filing of workers compensation claims still pop up on employment questionnaires, she said. That information could wrongly be used by a potential employer to deny a job to someone based on a potential disability.

Job applicants cannot be asked questions about whether they smoke or drink because that information also could be used to determine a potential disability somewhere in the future and to deny a job based on that would be illegal.

For an applicant with a conditional job offer

The same protections from the Americans with Disabilities Act apply, but a company can make a job offer contingent on the applicant passing a physical. That physical can only be related to the specific job being offered.

For example, an employee being hired as a truck driver could be required to pass a physical involving Department of Transportation requirements or to see if he or she can move pallets - if that is required for the job.

"They just can't discriminate against you if it's not related to the job," Connor said.

For an employee already on the job

Things can get more complicated in the relationship between companies and employees who are already on the payroll.

Connor said she can understand the rationale behind a company trying to cut health insurance costs by having employees participate in preventive health programs, "but that's an untested legal area."

The issue is the accessibility of the information provided by an employee about his or her health and background.

If the company is using some outside health-based company to gather that information, it should not be available to the employer, and it should never be kept with an employee's personnel file at the company, she said.

"They have the right to ask, but they cannot see the information," she said. "They have no right to know your medical history or your family's medical history."

It would be illegal for a company to use that information to pass on higher premium rates to individual employees, but it would be different if the entire employee base was being asked to share the greater cost, she added.

"Most employment attorneys would agree that's legal because the employees are all being treated the same," Connor said.

It could be a problem if a company used an employee's refusal to participate in a preventive health program as a basis for passing on higher health insurance costs but that's an area of law that has not been tested, she said.

What's the main obligation of the employee?

It's simple: Always tell the truth.

"You have an obligation to be honest," she said. And company policies frequently have a provision about employee dishonesty that would allow giving false information to be considered misconduct that would warrant not offering a job or terminating employment.