Tips from the Trenches

When Can Agencies Lawfully Request Medical Documentation From Employees?

Sep 27, 2019 4:39:19 PM / by Deryn A. Sumner, Esq.

In our practice representing federal employees and agencies, one area where we often see missteps from employers involves employee medical documentation. Employers tend to make errors in three key areas:


  1. Requesting medical documentation unlawfully;
  2. Requiring an employee to submit to multiple requests for medical documentation over too short a time period; and
  3. Not properly securing medical documentation after receipt.

We’ll talk about the third point in a separate blog post. So let’s talk about best practices for avoiding claims that an agency unlawfully requested or kept employee medical documentation.

First, keep in mind that all employees, not just those requesting reasonable accommodation or who have a disability, are entitled to have their medical information kept confidential and away from those without a need to know what’s going on with their health.

Second, remember that a key point in every discussion of what medical information can be lawfully requested centers on whether the individual is an applicant, has received a conditional job offer, or has started work.

And third, it’s important to note that there are very few bright line rules as to how often an employee must submit an update on his or her medical condition, or when it is appropriate to send an employee to a fitness-for-duty examination. Individualized assessments, taking into account the facts of a particular situation, must be conducted.

So, when exactly can an employer lawfully request medical documentation after an employee starts the job? Any request must be job related and consistent with business necessity. What does that mean in practice? Well, any concerns about an employee must be related to their ability to successfully and safely perform their position. If an employee requests reasonable accommodation in the workplace, medical documentation should only be requested if the disability is not obvious or the need for the accommodation is unknown. If an employee acts in a manner that raises concerns about their ability to safely perform the job, medical documentation should only be requested (or sending an employee to a fitness-for-duty examination should only be ordered), if the concern is based on objective evidence. And again, any such action must be job related and consistent with business necessity.

It is typically easier to justify requests for medical documentation if the employee's position involves public safety or carrying a firearm. Employers can request medical documentation to justify the use of sick leave, in adherence with OPM policies, but must do so for all employees regardless of whether or not they have disabilities. Employers should narrowly tailor requests for medical records – keep the timeframe short, don’t ask for complete medical histories, and don’t ask about medical conditions that are unrelated to a request for accommodation.

As mentioned above, there is no hard and fast rule as to how often an employer can request that an employee provide updates on their medical condition. However, if an employee has submitted medical documentation showing that the condition or conditions are permanent and unable to change, employers should exercise caution in making requests for updates.

Topics: federal hr & eeo law training, request, medical documentation

Deryn A. Sumner, Esq.

Written by Deryn A. Sumner, Esq.

Deryn A. Sumner, Esq. is a Partner at Gilbert Employment Law, as well as Co-Chair of the firm's Federal Sector EEOC Practice Group. She focuses her practice on representing federal employees and agencies before the EEOC and has worked on hundreds of cases involving claims of employment discrimination on the basis of disability, race, age, religion, retaliation and other bases. She also has experience representing employees and agencies in cases of whistleblower retaliation and adverse action challenges before the MSPB. Ms. Sumner graduated from American University's Washington College of Law in Washington, D.C. While in law school, she served as a Note and Comment Editor on the Administrative Law Review, as well as co-chair of the Labor and Employment Law Society. She also holds a Bachelor of Arts in Political Science from the University of Southern California in Los Angeles, California. Ms. Sumner is the co-author of several books on federal sector employment law including Representing Agencies and Complainants Before the EEOC; Federal Sector Disability Discrimination Law Deskbook; EEO Counselors' and Investigators' Manual; and an annual Consolidated Federal Sector EEO Update.


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