L’Oreal USA Could Require Employees to Hand Over Their Medical History to Continue Working From Home — and it May Be a Sign of What’s to Come

Aug 4, 2020

Posted on August 4th, 2020 | By Shoshy Ciment and Amanda Krause

• L’Oréal US employees who want to work from home are being required to give the company access to their medical history, two current L’Oreal employees confirmed.
• Beauty watchdog Instagram account esteelaundry shared a photo of the form employees must sign that releases “information regarding any physical or mental limitation(s)” that could affect their ability to “safely perform work” during the pandemic.
• According to Helen Rella, an employment and labor lawyer at Wilk Auslander, L’Oreal is perfectly within its rights to request medical records or information from its employees who are requesting accommodations.
• “We have never seen a situation like this before with anticipated mass applications for disability-based accommodations,” Rella said. “Employers and employees are encouraged to work together in an interactive process to address the situation and keep the workforce functioning.”
• A spokesperson for ‘L’Oréal USA said the company “does not ask for any employee’s actual medical records or details of a medical diagnosis.” The request form includes the release of  “medical information.”
• Visit Business Insider’s homepage for more stories.

As the US slowly reopens, employers are grappling with how — if at all — to bring people back into the office.

In the case of L’Oréal USA, a push to return to the office has some employees in an uncomfortable situation. Those employees who wish to remain working from home must provide access to their medical records in order for any accommodations from the company to be considered, according to a post on beauty watchdog Instagram account esteelaundry.

The post, which was published about a week ago, shows the form that L’Oreal employees can sign that would release “information regarding any physical or mental limitation(s)” that may affect their ability to “safely perform work,” during the pandemic, which they must fill out if they wish to remain working from home. Two current L’Oreal employees confirmed the arrangement to Business Insider.

A spokesperson for ‘L’Oréal USA, which employs nearly 11,000 people noted that the company “does not ask for any employee’s actual medical records or details of a medical diagnosis. Any employee seeking a medical exemption from returning to in-office work is required to provide verification from their physician. In most instances, a doctor’s note is a sufficient verification.”

The request form includes the release of  “medical information.”

The spokesperson added: “Any confidential information shared by employees is managed by a third-party provider in conjunction with HIPAA-trained HR professionals who determine eligibility for medical exemptions from returning to in-office work.”

The legal implications of requesting medical information

According to Helen Rella, an employment and labor lawyer at Wilk Auslander, L’Oreal is perfectly within its rights to request access to medical information from its employees who are requesting to stay at home.

Rella explained that it is up to an employer to set the terms and conditions of employment, which includes where the job is physically carried out. Since statewide restrictions and stay-at-home orders have been lifted, employees have technically been required to come back into work if their job demands it and could be subject to termination of they refuse.

However, the Americans with Disabilities Act, which prohibits employment discrimination based on disabilities, allows employees with underlying medical conditions that put them at a higher risk for severe illness from COVID-19 to request accommodations from their employers, which includes working from home.

In the event an employee makes this type of request, the employer has the legal right to ask for pertaining medical certification and records in order to justify any accommodation.

“Employee medical records are considered highly confidential and an employer may only request information related to the stated disability and need for an accommodation, and may not generally request all medical records of the employee,” said Rella.

The practice of releasing medical information to one’s employer during the process of requesting workplace accommodations has been the norm in employment law for some time. But the pandemic is making situations like these a lot more common across a variety of workplaces, Rella said.

“We have never seen a situation like this before with anticipated mass applications for disability-based accommodations,” Rella said. “Employers and employees are encouraged to work together in an interactive process to address the situation and keep the workforce functioning.”

L’Oréal could face lawsuits down the line as a result of these medical-release documents

Jackie Voronov and Jeffrey Daitz, labor and employment attorneys at Hall Booth Smith, P.C., told Insider that while L’Oréal’s documents are not inherently illegal or unethical, they could lead to issues for the company at a later time.

“You could sue somebody based on a perceived disability, and questionnaires like this can put you into a lawsuit on a perception of an Americans with Disabilities Act violation, so it’s a very sensitive and delicate issue,” Daitz told Insider.

Voronov added: “As a rule of thumb in this day and age, in the year 2020, where anybody can say ‘You’re discriminating against me because I’m disabled,’ there’s better ways to get the information you seek.”

Are you an employee in retail working during the pandemic? Email retail@businessinsider.com to share your story. 

Update: This story has been updated to include L’Oréal’s comment and to clarify that the company’s authorization form includes the release of medical information not medical records.