It happens all the time. Employers trying to assess an employee's request for medical leave or other accommodation wonder "Should I ask for medical documentation?" or better yet "What should I ask for, how much, or how little?" The first step, says Francis P. Alvarez, a partner with the national employment law firm Jackson Lewis LLP and speaker at the SHRM's annual Employment Law & Legislative Conference, is to actually ask.

Many employers, says Alvarez, refrain from asking for medical information for fear of running afoul of the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), or even the Health Insurance Portability and Accountability Act (HIPAA). And it is no small wonder that doubts about asking about medical information loom large in the HR practitioner's mind. Consider how many situations in which the need for medical information arises in the employment setting:

• Sick leave
• Attendance policies
• Leave, both personal and FMLA
• Short and long term disability
• Workers compensation and light duty
• Reasonable accommodation
• Administration of health benefits
• OSHA/safety

So, how does a conscientious HR Manager keep it all straight? First, says Alvarez, remember that each employee's situation should receive an "individualized assessment" - meaning that an HR Manager should gather medical information concerning that employee, and their ability to do the essential functions of their job, considering any physical or mental limitations. Medical assessments must comply with legal confidentiality requirements, be collected on forms separate from other personnel forms, maintained in separate files and disclosed only to those who have a business need to know, says Alvarez.

Getting Medical Information During Hiring

The first hurdle in the quest for medical information is the pre-employment medical assessment. Remember, says Alvarez, that any questions regarding medical information in the pre-employment stage must happen after an offer and before work starts. The ADA requires employers to exhaust all other pre-employment checks before medical questions begin, says Alvarez. For example, if you are conducting a routine background check on an employee as part of the hiring process, wait until you have completed the background check to do any medical evaluation. Beware, though, of drug tests, says Alvarez. Although drug tests are not generally considered to be "medical tests," if there is a positive result due to a legitimate medical condition, there could be an issue, he says.

Getting the Information You Need

When making a medical assessment, request and consider only the information that is "job related and consistent with business necessity." Do not ask for an employee's complete medical record or consider medical information that is provided and outside of the scope of the employer's interest in getting the employee fit to perform his or her job without a risk of harm to the employee or other employees, says Alvarez.

In order to get this targeted medical documentation, give the doctor as much information as you can as to why you are requesting the doctor's advice, says Alvarez. For example, give the doctor information on the employee that gives you cause for concern - the employee has fainted twice at work, she works on high platforms, she has told you that she doesn't take her medication because it makes her feel nauseated. This may be information that the doctor does not know and the employee will not tell him or her.

When Can You Require Medical Documentation?

There are four conditions under which an employer can require medical documentation, says Alvarez:

1. You have knowledge of an employee's medical condition that can reasonably be linked to performance problems (i.e., a known diabetic is "zoning out" at work and his performance is affected).
2. You have knowledge of an employee's medical condition that can reasonably be linked to concern about a potential direct threat to the employee's safety or the safety of others (i.e., an employee with a known seizure disorder works who with molten metal).
3. You receive reliable information from a third party that the employee has a medical condition that affects his or her job performance or creates a direct threat of danger to the employee or others.
4. You observe symptoms indicating that an employee may have a medical condition that impairs the employee's job performance or creates a "direct threat."

Can You Rely on the Doctor's Opinion?

So, now that you have the doctor's medical certification, you can rely on it and move on, right? Not so fast, says Alvarez. Employers are required to exercise "due diligence" to get the best medical advice to make a determination regarding employment. The best advice will come from a medical professional most qualified to make a medical determination regarding that specific employee. For that reason, says Alvarez, it is often wise for HR to require medical documentation from a medical specialist rather than a generalist. However, employers are not required to go to the ends of the earth tracking down the absolute best medical opinion. The employer's obligation to exercise due diligence is limited by reason. Therefore, employers who make a good faith effort to go beyond the medical generalist and obtain medical documentation from a specialist will usually be safe, says Alvarez.