Need to know if a question asked in interview is legal

[BBlock]

What is the name of your state? Illinois


I had a job interview yesterday, and was asked about the reason I was let go from my prior job. I was terminated as I was on medical leave for 3 months, and they had to fill my position. According to the FMLA, I guess that was legal...

My question is this, one of the interviewers wanted to know, in full detail, the reasons of my medical leave, which I did tell him. Then I get a response from him, something like "This concerns me, because you missed too much work. Is this squared away?" I told him yes it is...

What concerns me is that I feel this will now be used as a basis for them deciding to hire me or not.

Is this legal?? And if I do not get the job, do I have the basis for a lawsuit for discrimination?

 

[JETX]

"Is this legal??"
*** I see nothing illegal or improper in their questions.

"And if I do not get the job, do I have the basis for a lawsuit for discrimination?"
*** No.

 

[lawyer gal]

it depends

It varies from state to state. For the most part It was not illegal for him to ask you. It was a bit out of line but not illegal. you could have told him your medical records aren't his business and reassured him your medical condition was over and even have provided a simple letter from your doctor if he wanted ont. Although, it is illegal for him to hold that against you. It is a matter of proving he didn't hire you for that reason. Most employers wouldn't admit to that. They most likly would say he had better reason to hire someone else.

 

[CMSC]

lawyer gal, are employers only bound by a privacy act? The reason I am asking is my husband is taking leave for one of my surgeries and his boss said, "I would ask but I can lose my job and you can't tell me either"! He said it had to do with HIPAA (I think that is it)....so is it only employers not allowed to quesiton someone about medical history etc.? I haven't read the law that is why I am asking.

 

[cbg]

The situations are not quite the same.

In the original poster's case, a perfectly legitimate interview question, "Why did you leave your last employer" elicited the truthful response that it was for medical reasons. The interviewer could not possibly have known that that the question he asked would involve medical information. The ADA, which is one of the two laws that regulates the release of medical information and which is the relevant law in this particular situation, allows an interviewer or employer to follow up on medical issues that are raised by the applicant. Technically, since the interviewer was not directly targeting medical information, the poster is the one who raised the issue of medical information. However, it would have been illegal under the ADA for the interviewer to have asked a question such as, "Have you ever taken a medical leave?".

In your husband's case, HIPAA is a Federal law that has just been modified a few weeks ago and the new HIPAA is still quite misunderstood. Unless your husband works in the health care field or his boss is in HR working directly with a self-administered group health insurance plan, the boss was *probably* wrong about it being illegal to ask, although it's impossible to say for certain without knowing a great deal more about both your husband's company and how their health care plan is administered. However, whether it was technically illegal or not, the boss is nonetheless correct that as long as they have enough information to determine if FMLA is applicable, the less direct information they have, the better. Quite frankly, it's none of his business unless they need specific information for FMLA or ADA purposes, assuming either is applicable.

 

[lady_blueyed]

ryry's mom........F.Y.I.

The HIPAA law went into effect on April 14, 2003

1) It is the standardization of electronic health transactions

2) Privacy & confidentiality

3) Security of health information

You can get more information about HIPAA at:
www.hipaadivorsory.com
www.hipaaregs.com
www.hhs.gov/ocr/hipaa/

 

[lawyer gal]

hmmm interesting

It's interesting that the employer would bring up the HIPAA law. Really it doesn't pretain to your situation. FMLA says your husband can take a medical leave based on your surgery. Really his employer can't do anything about it. As long as he fills out the paper work and gets the right documentation (being varification from your doctor and what not stating he would be caring for you and giving a general time line as to how long he would be taking off). Although, if he is gone longer then three months they can fill his position and he can possiblly be terminated. Most employers wont do that though because that would leave them subject to pay unemployment. As far as someone being allowed to ask about medical history. They can ask all they want, but you DO NOT have to answer and they CAN NOT hold it against you. All you need is verification from your doctor saying you need time off and they have to by law abide by it. HIPAA law doesn't have much to do about asking about medical history either. It has more to do with doctors and even some employers keeping your medical history confidential.

 

[Beth3]

"Most employers wont do that though because that would leave them subject to pay unemployment."

Lawyergal, that's just not the case. While quite a few employers have policies that offer leave time beyond what's required by the FMLA, if they don't, most employers will terminate if the employee cannot return after 12 weeks. The term'd ee will only be eligible for UC benefits at such time as they are physically capable of working again, which does not necessarily coincide with the time they are terminated. (If it did, they'd have returned to work.)

 

[lawyer gal]

yes and?

you are right, but given that the husband is not injured and will be able to return to work that just isn't the case.

 

[Sinsaint26]

Lawyer Gal, that is not the case. If after three months an employee is not completely able to return to work the employer is not required to return them to a job, find a job or create a job to suit the employee's needs. They can legally be terminated after FMLA runs out if they are not completely able to do the requirements of the job. Even under the ADA an employer is not required to do this, they must only try to come up with a reasonable accommodation. Things like no perfume when an employee is severely allergic or a ramp or wheelchair accessible restroom for a handicap employee are reasonable accommodations. Some employer will find work for an employee to do to, but it is by no means required. As far as UC goes, if the employer has no job for your boyfriend and they choose to let him go he is, by UC regulations allowed to collect UC for up to six months. And to collect UC benefits he must be ready and able to work as well as looking for employment while he is collecting. It is not a gift that the employer gave him.