I live in Illinois, if that makes a difference.

My friend is worried that he will be asked by a prospective employer if he's ever consulted a psychiatrist (or received mental health treatment). Is it legal to ask such a question or to ask someone to give access to their medical records prior to employment, say as part of the application?

Would this be acceptable in relation to specific government jobs considered "top secret" or something?

Thanks!

Normally it would be illegal to ask such a question. But certain jobs might make it more viable.

In short - NO.

This is none of the employer's business. They can't ask about it pre-offer, post-offer, or during employment. It doesn't matter if your friend is getting government job with a secret clearance or not - this is protected information and the employer has no right or reason to ask.

Well it will depend on the job, jobs incluing law enforcement, some military positions and more

In fact for police positions you are required to have a mental health review before you can proceed with the interview process.

And for the very very top secret, yep, they send investigators to your town where you grew up, talk to your high school and college teachers,

Heck they had on file pick up lies I used on girls in college 20 years earlier.

Thanks for such quick responses!

So maybe it's a subtle point, but even though it may be illegal to ask you outright, could they legally ask you to sign a WAIVER of your rights/medical records? This would seem to be under a bit of duress if you were applying to a job, but is it legal?

Yep it is legal

This is a really, really sticky situation.

One's medical records are not the business of an employer - even for clearances medical records shouldn't be investigated. A person might be required to undergo psychological evaluation, but the employer should not be asking if you have ever seen, or currently see a therapist.

Who is your friend seeking employment with? What sort of job is this? Obviously, if it's for a job as a waiter or cab driver, this info is TOTALLY off limits!

There is no duress, your friend is asking for a job, he could walk away from the interview. There are many jobs like Fr-Chuck points out that could require a clean mental health background. Lets think about it, would you want someone with a mental health history sitting in a missile tube with a red button in front of him? Guess those jobs don't exist anymore but I thought it was a good example.

Missile silo - no... IT professional, I don't see the relationship. As long as your "condition" (and it's a stretch to assume there's a condition just because you have consulted a psychiatrist) doesn't adversely affect job performance then what's the deal?

I guess I used the word "duress" a bit lightly... I do know that HIPAA rules say you can't be asked to sign a waiver by an employer in conjunction with getting health insurance... I guess all's fair until you actually have the job... :rolleyes:

Good point Renee. I do wonder if employers can ask "health questions" legitimently to determine previous health issues for insurance purposes, they do not have to cover preexisting conditions. I have been out of HR for 6 years and have not kept up it that area. Good luck, Bob

I would say it depends on the job. But I am pretty sure that to get security clearance you have to pass certain standards and background checks which would include physcological items. My hubby is in the military and has a pretty high security clearance... I can't tell you which level he has for obvious reasons. But it logically wouldn't be a good idea to give someone who is suicidal or homicidal or schizophrenic a top secret clearance and a gun. But I would suggest checking with your states workforce commission and give them all the details about the job and the specific questions they are asking. Sounds like it might be a good job though! And if your friend doesn't have anything to hide then who cares... just give them the info... but if they are worried about something then check it out with the proper people in your state.

One last thought... I agree with everyone who says that they might require a mental health or physical exam before you start working there... and like they said... you wouldn't want someone with suicidal or homicidal thoughts sitting with that big red button in front of them... lol... good example!

And I understand the whole pre-existing condition thing. But that information should only be privy to those that require it - not, for example, your boss or coworkers.

I'm just wondering what the fuss/advantage is about HIPAA if those regulations can be so easily side-stepped by making signing a waiver of your rights a requirement to get employment.

In general, for an IT professional, no, his medical past would not be disclosed. Unless this position is for super-top-secret government work (requiring an ULTRA high clearance, like a TS/SCI with full scope poly and lifestyle), his medical past, ANY of it, should not be asked about or required. Even for a Secret Clearance it should not be asked about. Mental health does not prohibit obtaining a clearance.

And no, employers can't ask about health conditions for insurance purposes. It's none of their business if you have an artificial leg or diabetes or a plate in your head. Pre-existing conditions are covered when you have insurance through your employer (as a general rule; like diabetes, artificial legs and a plate in your head).

This is, in fact, incorrect. If your friend is applying for employment which requires security clearance, he/she will be asked about his/her history. And anything not disclosed will show up anyway.

Some types of conditions render a person unable to obtain security clearance.

Let me clarify - it will ask about activity over the past 7 years, not "ever".

Page 20 on this link specifies how mental health is handled on the SF-86:

http://forms.cgaux.org/archive/sf86_guide.pdf

This is information your FSO has, not your employer. Your employer can't ask you these questions, nor can your FSO disclose the answers to your employer.

I actually worked security clearances for the Feds, for a number of years - perhaps you did or do, too, because you seem knowledgeable.

If the day before yesterday came up in a background check, it was my job to dig up anything related to that - so the "7 year" rule is not adhered to. Your neighbor says 8 years ago you got removed from the family home, the investigation goes back at least 8 years to find out what that is about.

If you have a criminal past, an unfavorable medical report/condition, and it's more than 7 years old it is not simply disregarded and will turn up.

Do people sneak through - possibly so. I simply believe in answering the questions honestly when they are asked if you want a shot at the job. Hide info, whitewash info, it gets found out - your application gets shredded.

I work in an HR department that issues clearances to every employee we hire; I've taken part in getting clearances to over 50 people since April, so I've picked up a little on the way. :)

Yes, if a neighbor says you got carted off to the nut house 8 years ago, they'll find it - but the disclosure is still only for 7 years. And going to the nut house is a little different than a few visists to a therapist, which is, I assume, what the OP is referring to. Regardless, this information turns up on the SF-86 results and is known only by the FSO - the employer doesn't know, never does know, and can't ask. My take on the OP's question was can the employer ask these questions, as in, at the interview. The answer to that, of course, is no.

Are we beating a dead horse? :)

Just had to pull this out for emphasis - good lord, PLEASE answer honestly when applying! We've done background checks that turn up TOTALLY different info that what the person listed - so different it looks like it's from two different people. Maybe people think we're bluffing when we say we do a background check and security clearance...