My Privacy Rights: What Do I Have To Tell My Employer?

Employees and job applicants often wonder how much information they must tell an employer. In particular, sensitive personal details like medical conditions, mental health problems, and involvement with the justice system tend to be issues employees are unsure about disclosing to employers or potential employers.

Guidelines for what you have to share with an employer or potential employer will vary depending on the nature of the job, the state, and the nature of the sensitive information. If you have specific questions about personal concerns, you should contact an experienced employment law lawyer for legal advice.

What Medical Information Can an Employer Ask For?

Generally, an employer may not ask you for medical information. During the job application process, an employer may not ask if you have a disability or medical conditions. They can ask if you will need any accommodation to do your job and if you can do the job. After you’re hired, an employer may ask for a note to confirm sick leave or workers’ compensation claims.

Do I Have to Disclose Medical Information to My Employer?

Federal law or state laws might require you to disclose certain private information to your employer, depending on your medical condition. For instance, if you request that your employer grant you reasonable accommodation in your job under the Americans with Disabilities Act (ADA), you may need to provide your employer with information to prove your disability meets the ADA standard.

Similarly, if you are requesting medical leave from work due to a certain medical condition for more than several days, the Family and Medical Leave Act (FMLA) and/or your employer’s internal policies may require your doctor to certify the existence of a need for health care covered by the FMLA.

Other considerations may also affect your decision to disclose personal information to your employer. Disclosing certain health conditions to your employer may make your work environment less stressful.

Plus, with knowledge of your condition, your employer can assist you if you become suddenly ill or need medical treatment while in the workplace. On the other hand, you may fear discrimination or retaliation by your employer if you admit to having a medical condition; unfortunately, not all employers are as understanding and accommodating as they should be.

Can I Sue My Employer for Disclosing Medical Information?

Your employer can be liable in many states if they violate state privacy laws by disclosing employees’ medical conditions. A federal law called the Health Insurance Portability and Accountability Act (HIPAA) prohibits the unauthorized disclosure of medical records except for specific reasons. You could seek legal advice and file a civil lawsuit against your employer to seek compensation for damages if you suspect a HIPAA violation.

If the disclosure was the result of a data breach, the legal issues will focus on whether your employer used reasonable measures to protect employees’ personal data and personnel files.

Disclosing Criminal Convictions to Employers

Generally, employers have the right to ask applicants and employees for written consent to perform a background check. State law varies widely on the type of criminal record information that you must disclose to your employer.

A criminal conviction related to your job or job you are applying for may give your employer grounds to discipline or fire you, depending on state law. However, this doesn’t mean an employer can fire you just for a criminal conviction. According to the Equal Opportunity Employment Commission, your employer must consider:

• The nature and seriousness of the offense
• The time past the conviction
• Whether the nature of the conviction relates to your job duties

Most states also limit the type of information employers can access through background checks. For instance, in California, employers cannot ask you about certain marijuana convictions that are more than two years old. Most convictions older than seven years should not appear on a background check, though felony convictions may appear in your background report for much longer.

Sometimes, you may have to disclose criminal convictions for other reasons. If you need to take time off from work for daily drug testing, for example. Or you may inadvertently disclose convictions, like if you post on social media.

Do I Have to Disclose a Criminal Background?

If you hold a professional license that an arrest or criminal conviction could affect, it is probably wise to tell your employer before the appropriate licensing agency takes action.

There is also the risk that your employer will independently discover information about you that you did not disclose as an employee or on your application. This could result in discipline or termination of employment, depending on your employer’s policies and/or the laws of your state.

Call a Lawyer To Protect Your Rights

For advice tailored to you and your circumstances, contact an experienced employment lawyer. A lawyer can look into your claim and determine if you were treated unfairly regarding your privacy. They can represent you in a lawsuit, if necessary to assert your rights.