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Applicant isn’t required to reveal medical condition

Dear J.T. & Dale: I’m writing for a doctor client who has autoimmune and other medical issues, especially bad diarrhea, but has managed to continue doing her job at her current clinic for years. She has been recruited by another clinic and currently interviewing. Does she have any legal responsibility to bring up her medical conditions if she gets a job offer? – Judy

DALE: Whenever there’s a legal question we turn to our favorite employment attorneys, the ones at Rodey Law in Albuquerque. We asked Tom Stahl, the firm’s president, for his thoughts:

TOM: If her new employer would be covered by the Americans with Disabilities Act, the answer is crystal clear. The ADA prohibits an employer from asking about an impairment that is not visible. So, if it is illegal to ask under federal law, it’s hard to see how there could be any duty to tell under a state or local law. Of course, an employer is always free to ask any applicant whether she is able to perform the essential functions of the position. It sounds to me like that’s where the rubber meets the road here. Naturally, an applicant in this doctor’s position would need to answer honestly or risk the ignominy of being discharged if she can’t perform those essential functions without a reasonable accommodation. We don’t have enough information to assess that here. For example, it seems pretty clear that an ER or urgent care doc who has to leave an in extremis patient to use the facilities is not able to perform the essential functions of the job. On the other hand, if this doctor is doing simple physicals on patients, there would not seem to be any reason she could not excuse herself for a few moments and still be able to perform those essential functions.

J.T.: Thank you, Tom. I’d sum it up this way: When you have a medical condition that makes it 100% impossible for you to do the job as described, it is in your best interest to reveal it and to ask for an “accommodation” – which is a workaround for you so that you can be hired to do the job. In this case, she may want to mention the problem, so they aren’t caught off guard after she is hired. It would make a bad first impression if she seemed distracted or always running to the bathroom without explanation.

 

Dear J.T. & Dale: I work in a nursing home and, as you can imagine, we have strict protocols with respect to COVID-19. I have a new manager who, when we are in a room one-on-one, pulls her mask down every two seconds to talk. She said she hates talking through a mask. It freaks me out. If I go to HR and say something, it will get back to her and she will know it’s me. Any other ideas of how I could get the point across to her? – Lindy

J.T.: Yes, going to HR means it will likely get back to your manager and make for an awkward situation. But this is your life we’re talking about, and it shouldn’t matter that it’s inconvenient for her to talk through her mask, especially being in a facility with high-risk individuals. I would not waste another minute. I would absolutely tell her next time you’re with her not to pull her mask down, because it makes you uncomfortable. Then, if she continues to do it, I would go to HR.

DALE: This is another case where you should first start by practicing your personal HR skills, your human relations skills. If you make it about your boss being thoughtless and irresponsible, she will, of course, resent you. That’s why you have to make it about you. Tell your boss that while you might be overreacting and/or paranoid (it isn’t and you aren’t), the mask thing really bothers you. Try to make it lighthearted with the joke on you. If that doesn’t work, turn as deadly serious as the pandemic and don’t hesitate to go to HR.

Jeanine “J.T.” Tanner O’Donnell is a career coach and the founder of the leading career site www.workitdaily.com. Dale Dauten is founder of The Innovators’ Lab and author of a novel about H.R., “The Weary Optimist.” Please visit them at jtanddale.com, where you can send questions via email, or write to them in care of King Features Syndicate, 628 Virginia Dr., Orlando, FL 32803. (c) 2021 by King Features Syndicate Inc.

 

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