[blindlaw] Employment Discrimination?
Steven Johnson
blinddog3 at charter.net
Fri Sep 13 00:30:59 UTC 2013
Jordan, I hope this helps:
The U.S. Equal Employment Opportunity Commission
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NOTICE Number
EEOC 915.002
Date
7/27/00
1. SUBJECT: EEOC Enforcement Guidance on Disability-Related Inquiries and
Medical Examinations of Employees Under the Americans with Disabilities Act
(ADA)
2. PURPOSE: This enforcement guidance explains when it is permissible
foremployers to make disability-related inquiries or require medical
examinations of employees.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix
B,Attachment 4, § a(5), this Notice will remain in effect until rescinded or
superseded.
5. ORIGINATOR: ADA Division, Office of Legal Counsel.
6. INSTRUCTIONS: File after Section 902 of Volume II of the Compliance
Manual.
7/27/00 /s/
Date Ida L. Castro
Chairwoman
DISTRIBUTION: CM Holders
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ENFORCEMENT GUIDANCE:
DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER
THE AMERICANS WITH DISABILITIES ACT (ADA)
Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008
The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed
into law on September 25, 2008 and becomes effective January 1, 2009.
Because this law makes several significant changes, including changes to the
definition of the term "disability," the EEOC will be evaluating the impact
of these changes on this document and other publications. See the list of
specific changes to the ADA made by the ADA Amendments Act.
TABLE OF CONTENTS
INTRODUCTION
GENERAL PRINCIPLES
Background
Disability-Related Inquiries and Medical Examinations of Employees
JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY
In General
Scope and Manner of Disability-Related Inquiries and Medical Examinations
Disability-Related Inquiries and Medical Examinations Relating to Leave
Periodic Testing and Monitoring
OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF
EMPLOYEES
INDEX
INTRODUCTION
Title I of the Americans with Disabilities Act of 1990 (the "ADA")(1) limits
an employer's ability to make disability-related inquiries or require
medical examinations at three stages: pre-offer, post-offer, and during
employment. In its guidance on preemployment disability-related inquiries
and medical examinations, the Commission addressed the ADA's restrictions on
disability-related inquiries and medical examinations at the pre- and
post-offer stages.(2) This enforcement guidance focuses on the ADA's
limitations on disability-related inquiries and medical examinations during
employment.(3)
Disability-related inquiries and medical examinations of employees must be
"job-related and consistent with business necessity." This guidance gives
examples of the kinds of questions that are and are not "disability-related"
and examples of tests and procedures that generally are and are not
"medical." The guidance also defines what the term "job-related and
consistent with business necessity" means and addresses situations in which
an employer would meet the general standard for asking an employee a
disability-related question or requiring a medical examination. Other
acceptable inquiries and examinations of employees, such as inquiries and
examinations required by federal law and those that are part of voluntary
wellness and health screening programs, as well as invitations to
voluntarily self-identify as persons with disabilities for affirmative
action purposes, also are addressed.(4)
GENERAL PRINCIPLES
A. Background
Historically, many employers asked applicants and employees to provide
information concerning their physical and/or mental condition. This
information often was used to exclude and otherwise discriminate against
individuals with disabilities -- particularly nonvisible disabilities, such
as diabetes, epilepsy, heart disease, cancer, and mental illness -- despite
their ability to perform the job. The ADA's provisions concerning
disability-related inquiries and medical examinations reflect Congress's
intent to protect the rights of applicants and employees to be assessed on
merit alone, while protecting the rights of employers to ensure that
individuals in the workplace can efficiently perform the essential functions
of their jobs.(5)
Under the ADA, an employer's ability to make disability-related inquiries or
require medical examinations is analyzed in three stages: pre-offer,
post-offer, and employment. At the first stage (prior to an offer of
employment), the ADA prohibits all disability-related inquiries and medical
examinations, even if they are related to the job.(6) At the second stage
(after an applicant is given a conditional job offer, but before s/he starts
work), an employer may make disability-related inquiries and conduct medical
examinations, regardless of whether they are related to the job, as long as
it does so for all entering employees in the same job category.(7) At the
third stage (after employment begins), an employer may make
disability-related inquiries and require medical examinations only if they
are job-related and consistent with business necessity.(8)
The ADA requires employers to treat any medical information obtained from a
disability-related inquiry or medical examination (including medical
information from voluntary health or wellness programs (9)), as well as any
medical information voluntarily disclosed by an employee, as a confidential
medical record. Employers may share such information only in limited
circumstances with supervisors, managers, first aid and safety personnel,
and government officials investigating compliance with the ADA.(10)
B. Disability-Related Inquiries and Medical Examinations of Employees
The ADA states, in relevant part:
A covered entity(11) shall not require a medical examination and shall not
make inquiries of an employee as to whether such employee is an individual
with a disability or as to the nature and severity of the disability, unless
such examination or inquiry is shown to be job-related and consistent with
business necessity.(12)
This statutory language makes clear that the ADA's restrictions on inquiries
and examinations apply to all employees, not just those with disabilities.
Unlike other provisions of the ADA which are limited to qualified
individuals with disabilities,(13) the use of the term "employee" in this
provision reflects Congress's intent to cover a broader class of individuals
and to prevent employers from asking questions and conducting medical
examinations that serve no legitimate purpose.(14) Requiring an individual
to show that s/he is a person with a disability in order to challenge a
disability-related inquiry or medical examination would defeat this
purpose.(15) Any employee, therefore, has a right to challenge a
disability-related inquiry or medical examination that is not job-related
and consistent with business necessity.
Only disability-related inquiries and medical examinations are subject to
the ADA's restrictions. Thus, the first issue that must be addressed is
whether the employer's question is a "disability-related inquiry" or whether
the test or procedure it is requiring is a "medical examination." The next
issue is whether the person being questioned or asked to submit to a medical
examination is an "employee." If the person is an employee (rather than an
applicant or a person who has received a conditional job offer), the final
issue is whether the inquiry or examination is "job-related and consistent
with business necessity" or is otherwise permitted by the ADA.(16)
1. What is a "disability-related inquiry"?
In its guidance on Preemployment Questions and Medical Examinations, the
Commission explained in detail what is and is not a disability-related
inquiry.(17) A "disability-related inquiry" is a question (or series of
questions) that is likely to elicit information about a disability.(18) The
same standards for determining whether a question is disability-related in
the pre- and post-offer stages apply to the employment stage.(19)
Disability-related inquiries may include the following:
•asking an employee whether s/he has (or ever had) a disability or how s/he
became disabled or inquiring about the nature or severity of an employee's
disability;(20)
•asking an employee to provide medical documentation regarding his/her
disability;
•asking an employee's co-worker, family member, doctor, or another person
about an employee's disability;
•asking about an employee's genetic information;(21)
•asking about an employee's prior workers' compensation history;(22)
•asking an employee whether s/he currently is taking any prescription drugs
or medications, whether s/he has taken any such drugs or medications in the
past, or monitoring an employee's taking of such drugs or medications;(23)
and,
•asking an employee a broad question about his/her impairments that is
likely to elicit information about a disability (e.g., What impairments do
you have?).(24)
Questions that are not likely to elicit information about a disability are
not disability-related inquiries and, therefore, are not prohibited under
the ADA.
Questions that are permitted include the following:
•asking generally about an employee's well being (e.g., How are you?),
asking an employee who looks tired or ill if s/he is feeling okay, asking an
employee who is sneezing or coughing whether s/he has a cold or allergies,
or asking how an employee is doing following the death of a loved one or the
end of a marriage/relationship;
•asking an employee about nondisability-related impairments (e.g., How did
you break your leg?)(25)
•asking an employee whether s/he can perform job functions;
•asking an employee whether s/he has been drinking;(26)
•asking an employee about his/her current illegal use of drugs;(27)
•asking a pregnant employee how she is feeling or when her baby is due;(28)
and,
•asking an employee to provide the name and telephone number of a person to
contact in case of a medical emergency.
2. What is a "medical examination"?
A "medical examination" is a procedure or test that seeks information about
an individual's physical or mental impairments or health.(29) The guidance
on Preemployment Questions and Medical Examinations lists the following
factors that should be considered to determine whether a test (or procedure)
is a medical examination: (1) whether the test is administered by a health
care professional; (2) whether the test is interpreted by a health care
professional; (3) whether the test is designed to reveal an impairment or
physical or mental health; (4) whether the test is invasive; (5) whether the
test measures an employee's performance of a task or measures his/her
physiological responses to performing the task ; (6) whether the test
normally is given in a medical setting; and, (7) whether medical equipment
is used.(30)
In many cases, a combination of factors will be relevant in determining
whether a test or procedure is a medical examination. In other cases, one
factor may be enough to determine that a test or procedure is medical.
Medical examinations include, but are not limited to, the following:
•vision tests conducted and analyzed by an ophthalmologist or optometrist;
•blood, urine, and breath analyses to check for alcohol use;(31)
•blood, urine, saliva, and hair analyses to detect disease or genetic
markers (e.g., for conditions such as sickle cell trait, breast cancer,
Huntington's disease);
•blood pressure screening and cholesterol testing;
•nerve conduction tests (i.e., tests that screen for possible nerve damage
and susceptibility to injury, such as carpal tunnel syndrome);
•range-of-motion tests that measure muscle strength and motor function;
•pulmonary function tests (i.e., tests that measure the capacity of the
lungs to hold air and to move air in and out);
•psychological tests that are designed to identify a mental disorder or
impairment; and,
•diagnostic procedures such as x-rays, computerized axial tomography (CAT)
scans, and magnetic resonance imaging (MRI).
There are a number of procedures and tests employers may require that
generally are not considered medical examinations, including:
•tests to determine the current illegal use of drugs;(32)
•physical agility tests, which measure an employee's ability to perform
actual or simulated job tasks, and physical fitness tests, which measure an
employee's performance of physical tasks, such as running or lifting, as
long as these tests do not include examinations that could be considered
medical (e.g., measuring heart rate or blood pressure);
•tests that evaluate an employee's ability to read labels or distinguish
objects as part of a demonstration of the ability to perform actual job
functions;
•psychological tests that measure personality traits such as honesty,
preferences, and habits; and,
•polygraph examinations.(33)
3. Who is an "employee"?
The ADA defines the term "employee" as "an individual employed by an
employer."(34) As a general rule, an individual is an employee if an entity
controls the means and manner of his/her work performance.(35)
Where more than one entity controls the means and manner of how an
individual's work is done, the individual is an employee of each entity.
Example: XYZ, a temporary employment agency, hires a computer programmer and
assigns him to Business Systems, Inc. (BSI), one of its clients. XYZ
determines when the programmer's assignment begins and pays him a salary
based on the number of hours worked as reported by BSI. XYZ also withholds
social security and taxes and provides workers' compensation coverage. BSI
sets the hours of work, the duration of the job, and oversees the
programmer's work. XYZ can terminate the programmer if his performance is
unacceptable to BSI.
The programmer is an employee of both XYZ and BSI. Thus, XYZ and BSI may ask
the programmer disability-related questions and require a medical
examination only if they are job-related and consistent with business
necessity.
4. How should an employer treat an employee who applies for a new (i.e.,
different) job with the same employer?
An employer should treat an employee who applies for a new job as an
applicant for the new job.(36) The employer, therefore, is prohibited from
asking disability-related questions or requiring a medical examination
before making the individual a conditional offer of the new position.(37)
Further, where a current supervisor has medical information regarding an
employee who is applying for a new job, s/he may not disclose that
information to the person interviewing the employee for the new job or to
the supervisor of that job.
After the employer extends an offer for the new position, it may ask the
individual disability-related questions or require a medical examination as
long as it does so for all entering employees in the same job category. If
an employer withdraws the offer based on medical information (i.e., screens
him/her out because of a disability), it must show that the reason for doing
so was job-related and consistent with business necessity.
An individual is not an applicant where s/he is noncompetitively entitled to
another position with the same employer (e.g., because of seniority or
satisfactory performance in his/her current position). An individual who is
temporarily assigned to another position and then returns to his/her regular
job also is not an applicant. These individuals are employees and,
therefore, the employer only may make a disability-related inquiry or
require a medical examination that is job-related and consistent with
business necessity.
Example A: Ruth, an inventory clerk for a retail store, applies for a
position as a sales associate at the same store. Ruth is an applicant for
the new job. Accordingly, her employer may not ask any disability-related
questions or require a medical examination before extending her a
conditional offer of the sales associate position. Following a conditional
offer of employment, the employer may ask disability-related questions and
conduct medical examinations, regardless of whether they are related to the
job, as long as it does so for all entering employees in the same job
category.(38)
Example B: A grade 4 clerk typist has worked in the same position for one
year and received a rating of outstanding on her annual performance
appraisal. When she was hired, she was told that she automatically would be
considered for promotion to the next grade after 12 months of satisfactory
performance. Because the clerk typist is noncompetitively entitled to a
promotion, she is an employee and not an applicant. The employer, therefore,
only may make a disability-related inquiry or require a medical examination
that is job-related and consistent with business necessity.
Example C: A newspaper reporter, who regularly works out of his employer's
New York headquarters, is temporarily assigned to its bureau in South Africa
to cover the political elections. Because the reporter is on a temporary
assignment doing the same job, he is an employee; the employer, therefore,
may make disability-related inquiries or require medical examinations only
if they are job-related and consistent with business necessity.
JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY
Once an employee is on the job, his/her actual performance is the best
measure of ability to do the job. When a need arises to question the ability
of an employee to do the essential functions of his/her job or to question
whether the employee can do the job without posing a direct threat due to a
medical condition, it may be job-related and consistent with business
necessity for an employer to make disability-related inquiries or require a
medical examination.
A. In General
5. When may a disability-related inquiry or medical examination of an
employee be "job-related and consistent with business necessity"?
Generally, a disability-related inquiry or medical examination of an
employee may be "job-related and consistent with business necessity" when an
employer "has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be impaired by a
medical condition; or (2) an employee will pose a direct threat(39) due to a
medical condition."(40) Disability-related inquiries and medical
examinations that follow up on a request for reasonable accommodation when
the disability or need for accommodation is not known or obvious also may be
job-related and consistent with business necessity. In addition, periodic
medical examinations and other monitoring under specific circumstances may
be job-related and consistent with business necessity.(41)
Sometimes this standard may be met when an employer knows about a particular
employee's medical condition, has observed performance problems, and
reasonably can attribute the problems to the medical condition. An employer
also may be given reliable information by a credible third party that an
employee has a medical condition,(42) or the employer may observe symptoms
indicating that an employee may have a medical condition that will impair
his/her ability to perform essential job functions or will pose a direct
threat. In these situations, it may be job-related and consistent with
business necessity for an employer to make disability-related inquiries or
require a medical examination.
Example A: For the past two months, Sally, a tax auditor for a federal
government agency, has done a third fewer audits than the average employee
in her unit. She also has made numerous mistakes in assessing whether
taxpayers provided appropriate documentation for claimed deductions. When
questioned about her poor performance, Sally tells her supervisor that the
medication she takes for her lupus makes her lethargic and unable to
concentrate.
Based on Sally's explanation for her performance problems, the agency has a
reasonable belief that her ability to perform the essential functions of her
job will be impaired because of a medical condition.(43) Sally's supervisor,
therefore, may make disability-related inquiries (e.g.,ask her whether she
is taking a new medication and how long the medication's side effects are
expected to last), or the supervisor may ask Sally to provide documentation
from her health care provider explaining the effects of the medication on
Sally's ability to perform her job.
Example B: A crane operator works at construction sites hoisting concrete
panels weighing several tons. A rigger on the ground helps him load the
panels, and several other workers help him position them. During a break,
the crane operator appears to become light-headed, has to sit down abruptly,
and seems to have some difficulty catching his breath. In response to a
question from his supervisor about whether he is feeling all right, the
crane operator says that this has happened to him a few times during the
past several months, but he does not know why.
The employer has a reasonable belief, based on objective evidence, that the
employee will pose a direct threat and, therefore, may require the crane
operator to have a medical examination to ascertain whether the symptoms he
is experiencing make him unfit to perform his job. To ensure that it
receives sufficient information to make this determination, the employer may
want to provide the doctor who does the examination with a description of
the employee's duties, including any physical qualification standards, and
require that the employee provide documentation of his ability to work
following the examination.(44)
Example C: Six months ago, a supervisor heard a secretary tell her
co-worker that she discovered a lump in her breast and is afraid that she
may have breast cancer. Since that conversation, the secretary still comes
to work every day and performs her duties in her normal efficient manner.
In this case, the employer does not have a reasonable belief, based on
objective evidence, either that the secretary's ability to perform her
essential job functions will be impaired by a medical condition or that she
will pose a direct threat due to a medical condition. The employer,
therefore, may not make any disability-related inquiries or require the
employee to submit to a medical examination.
An employer's reasonable belief that an employee's ability to perform
essential job functions will be impaired by a medical condition or that s/he
will pose a direct threat due to a medical condition must be based on
objective evidence obtained, or reasonably available to the employer, prior
to making a disability-related inquiry or requiring a medical examination.
Such a belief requires an assessment of the employee and his/her position
and cannot be based on general assumptions.
Example D: An employee who works in the produce department of a large
grocery store tells her supervisor that she is HIV-positive. The employer is
concerned that the employee poses a direct threat to the health and safety
of others because she frequently works with sharp knives and might cut
herself while preparing produce for display. The store requires any employee
working with sharp knives to wear gloves and frequently observes employees
to determine whether they are complying with this policy. Available
scientific evidence shows that the possibility of transmitting HIV from a
produce clerk to other employees or the public, assuming the store's policy
is observed, is virtually nonexistent. Moreover, the Department of Health
and Human Services (HHS), which has the responsibility under the ADA for
preparing a list of infectious and communicable diseases that may be
transmitted through food handling,(45) does not include HIV on the list.(46)
In this case, the employer does not have a reasonable belief, based on
objective evidence, that this employee's ability to perform the essential
functions of her position will be impaired or that she will pose a direct
threat due to her medical condition. The employer, therefore, may not make
any disability-related inquiries or require the employee to submit to a
medical examination.(47)
6. May an employer make disability-related inquiries or require a medical
examination of an employee based, in whole or in part, on information
learned from another person?
Yes, if the information learned is reliable and would give rise to a
reasonable belief that the employee's ability to perform essential job
functions will be impaired by a medical condition or that s/he will pose a
direct threat due to a medical condition, an employer may make
disability-related inquiries or require a medical examination.
Factors that an employer might consider in assessing whether information
learned from another person is sufficient to justify asking
disability-related questions or requiring a medical examination of an
employee include: (1) the relationship of the person providing the
information to the employee about whom it is being provided; (2) the
seriousness of the medical condition at issue; (3) the possible motivation
of the person providing the information; (4) how the person learned the
information (e.g., directly from the employee whose medical condition is in
question or from someone else); and (5) other evidence that the employer has
that bears on the reliability of the information provided.
Example A: Bob and Joe are close friends who work as copy editors for an
advertising firm. Bob tells Joe that he is worried because he has just
learned that he had a positive reaction to a tuberculin skin test and
believes that he has tuberculosis. Joe encourages Bob to tell their
supervisor, but Bob refuses. Joe is reluctant to breach Bob's trust but is
concerned that he and the other editors may be at risk since they all work
closely together in the same room. After a couple of sleepless nights, Joe
tells his supervisor about Bob. The supervisor questions Joe about how he
learned of Bob's alleged condition and finds Joe's explanation credible.
Because tuberculosis is a potentially life-threatening medical condition and
can be passed from person to person by coughing or sneezing, the supervisor
has a reasonable belief, based on objective evidence, that Bob will pose a
direct threat if he in fact has active tuberculosis. Under these
circumstances, the employer may make disability-related inquiries or require
a medical examination to the extent necessary to determine whether Bob has
tuberculosis and is contagious.(48)
Example B: Kim works for a small computer consulting firm. When her mother
died suddenly, she asked her employer for three weeks off, in addition to
the five days that the company customarily provides in the event of the
death of a parent or spouse, to deal with family matters. During her
extended absence, a rumor circulated among some employees that Kim had been
given additional time off to be treated for depression. Shortly after Kim's
return to work, Dave, who works on the same team with Kim, approached his
manager to say that he had heard that some workers were concerned about
their safety. According to Dave, people in the office claimed that Kim was
talking to herself and threatening to harm them. Dave said that he had not
observed the strange behavior himself but was not surprised to hear about it
given Kim's alleged recent treatment for depression. Dave's manager sees Kim
every day and never has observed this kind of behavior. In addition, none of
the co-workers to whom the manager spoke confirmed Dave's statements.
In this case, the employer does not have a reasonable belief, based on
objective evidence, that Kim's ability to perform essential functions will
be impaired or that s/he will pose a direct threat because of a medical
condition. The employer, therefore, would not be justified in asking Kim
disability-related questions or requiring her to submit to a medical
examination because the information provided by Dave is not reliable.
Example C: Several customers have complained that Richard, a customer
service representative for a mail order company, has made numerous errors on
their orders. They consistently have complained that Richard seems to have a
problem hearing because he always asks them to repeat the item number(s),
color(s), size(s), credit card number(s), etc., and frequently asks them to
speak louder. They also have complained that he incorrectly reads back their
addresses even when they have enunciated clearly and spelled street names.
In this case, the employer has a reasonable belief, based on objective
evidence, that Richard's ability to correctly process mail orders will be
impaired by a medical condition (i.e., a problem with his hearing). The
employer, therefore, may make disability-related inquiries of Richard or
require him to submit to a medical examination to determine whether he can
perform the essential functions of his job.
7. May an employer ask an employee for documentation when s/he requests a
reasonable accommodation?
Yes. The employer is entitled to know that an employee has a covered
disability that requires a reasonable accommodation.(49) Thus, when the
disability or the need for the accommodation is not known or obvious, it is
job-related and consistent with business necessity for an employer to ask an
employee for reasonable documentation about his/her disability and its
functional limitations that require reasonable accommodation.(50)
8. May an employer ask all employees what prescription medications they are
taking?
Generally, no. Asking all employees about their use of prescription
medications is not job-related and consistent with business necessity.(51)
In limited circumstances, however, certain employers may be able to
demonstrate that it is job-related and consistent with business necessity to
require employees in positions affecting public safety to report when they
are taking medication that may affect their ability to perform essential
functions. Under these limited circumstances, an employer must be able to
demonstrate that an employee's inability or impaired ability to perform
essential functions will result in a direct threat. For example, a police
department could require armed officers to report when they are taking
medications that may affect their ability to use a firearm or to perform
other essential functions of their job. Similarly, an airline could require
its pilots to report when they are taking any medications that may impair
their ability to fly. A fire department, however, could not require fire
department employees who perform only administrative duties to report their
use of medications because it is unlikely that it could show that these
employees would pose a direct threat as a result of their inability or
impaired ability to perform their essential job functions.
9. What action may an employer take if an employee fails to respond to a
disability-related inquiry or fails to submit to a medical examination that
is job-related and consistent with business necessity?
The action the employer may take depends on its reason for making the
disability-related inquiry or requiring a medical examination.
Example A: A supervisor notices that the quality of work from an ordinarily
outstanding employee has deteriorated over the past several months.
Specifically, the employee requires more time to complete routine reports,
which frequently are submitted late and contain numerous errors. The
supervisor also has observed during this period of time that the employee
appears to be squinting to see her computer monitor, is holding printed
material close to her face to read it, and takes frequent breaks during
which she sometimes is seen rubbing her eyes. Concerned about the employee's
declining performance, which appears to be due to a medical condition, the
supervisor tells her to go see the company doctor, but she does not.
Any discipline that the employer decides to impose should focus on the
employee's performance problems. Thus, the employer may discipline the
employee for past and future performance problems in accordance with a
uniformly applied policy.
Example B: An accountant with no known disability asks for an ergonomic
chair because she says she is having back pain. The employer asks the
employee to provide documentation from her treating physician that: (1)
describes the nature, severity, and duration of her impairment, the activity
or activities that the impairment limits, and the extent to which the
impairment limits her ability to perform the activity or activities; and (2)
substantiates why an ergonomic chair is needed.
Here, the employee's possible disability and need for reasonable
accommodation are not obvious. Therefore, if the employee fails to provide
the requested documentation or if the documentation does not demonstrate the
existence of a disability, the employer can refuse to provide the chair.(52)
B. Scope and Manner of Disability-Related Inquiries and Medical Examinations
10. What documentation may an employer require from an employee who requests
a reasonable accommodation?
An employer may require an employee to provide documentation that is
sufficient to substantiate that s/he has an ADA disability and needs the
reasonable accommodation requested, but cannot ask for unrelated
documentation. This means that, in most circumstances, an employer cannot
ask for an employee's complete medical records because they are likely to
contain information unrelated to the disability at issue and the need for
accommodation.(53)
Documentation is sufficient if it: (1) describes the nature, severity, and
duration of the employee's impairment, the activity or activities that the
impairment limits, and the extent to which the impairment limits the
employee's ability to perform the activity or activities; and, (2)
substantiates why the requested reasonable accommodation is needed.
Example: An employee, who has exhausted all of his available leave,
telephones his supervisor on Monday morning to inform him that he had a
severe pain episode on Saturday due to his sickle cell anemia, is in the
hospital, and needs time off. Prior to this call, the supervisor was unaware
of the employee's medical condition.
The employer can ask the employee to send in documentation from his treating
physician that substantiates that the employee has a disability, confirms
that his hospitalization is related to his disability, and provides
information on how long he may be absent from work.(54)
11. May an employer require an employee to go to a health care professional
of the employer's (rather than the employee's) choice when the employee
requests a reasonable accommodation?
The ADA does not prevent an employer from requiring an employee to go to an
appropriate health care professional of the employer's choice if the
employee provides insufficient documentation from his/her treating physician
(or other health care professional) to substantiate that s/he has an ADA
disability and needs a reasonable accommodation.(55) However, if an employee
provides insufficient documentation in response to the employer's initial
request, the employer should explain why the documentation is insufficient
and allow the employee an opportunity to provide the missing information in
a timely manner.(56) The employer also should consider consulting with the
employee's doctor (with the employee's consent) before requiring the
employee to go to a health care professional of its choice.(57)
Documentation is insufficient if it does not specify the existence of an ADA
disability and explain the need for reasonable accommodation.(58)
Documentation also might be insufficient where, for example: (1) the health
care professional does not have the expertise to give an opinion about the
employee's medical condition and the limitations imposed by it; (2) the
information does not specify the functional limitations due to the
disability; or, (3) other factors indicate that the information provided is
not credible or is fraudulent. If an employee provides insufficient
documentation, an employer does not have to provide reasonable accommodation
until sufficient documentation is provided.
Any medical examination conducted by the employer's health care professional
must be job-related and consistent with business necessity. This means that
the examination must be limited to determining the existence of an ADA
disability and the functional limitations that require reasonable
accommodation. If an employer requires an employee to go to a health care
professional of the employer's choice, the employer must pay all costs
associated with the visit(s).(59)
The Commission has previously stated that when an employee provides
sufficient evidence of the existence of a disability and the need for
reasonable accommodation, continued efforts by the employer to require that
the individual provide more documentation and/or submit to a medical
examination could be considered retaliation.(60) However, an employer that
requests additional information or requires a medical examination based on a
good faith belief that the documentation the employee submitted is
insufficient would not be liable for retaliation.
12. May an employer require that an employee, who it reasonably believes
will pose a direct threat, be examined by an appropriate health care
professional of the employer's choice?
Yes. The determination that an employee poses a direct threat must be based
on an individualized assessment of the employee's present ability to safely
perform the essential functions of the job. This assessment must be based on
a reasonable medical judgment that relies on the most current medical
knowledge and/or best objective evidence.(61) To meet this burden, an
employer may want to have the employee examined by a health care
professional of its choice who has expertise in the employee's specific
condition and can provide medical information that allows the employer to
determine the effects of the condition on the employee's ability to perform
his/her job. Any medical examination, however, must be limited to
determining whether the employee can perform his/her job without posing a
direct threat, with or without reasonable accommodation. An employer also
must pay all costs associated with the employee's visit(s) to its health
care professional.(62)
An employer should be cautious about relying solely on the opinion of its
own health care professional that an employee poses a direct threat where
that opinion is contradicted by documentation from the employee's own
treating physician, who is knowledgeable about the employee's medical
condition and job functions, and/or other objective evidence. In evaluating
conflicting medical information, the employer may find it helpful to
consider: (1) the area of expertise of each medical professional who has
provided information; (2) the kind of information each person providing
documentation has about the job's essential functions and the work
environment in which they are performed; (3) whether a particular opinion is
based on speculation or on current, objectively verifiable information about
the risks associated with a particular condition; and, (4) whether the
medical opinion is contradicted by information known to or observed by the
employer (e.g., information about the employee's actual experience in the
job in question or in previous similar jobs).
13. How much medical information can an employer obtain about an employee
when it reasonably believes that an employee's ability to perform the
essential functions of his/her job will be impaired by a medical condition
or that s/he will pose a direct threat due to a medical condition?
An employer is entitled only to the information necessary to determine
whether the employee can do the essential functions of the job or work
without posing a direct threat. This means that, in most situations, an
employer cannot request an employee's complete medical records because they
are likely to contain information unrelated to whether the employee can
perform his/her essential functions or work without posing a direct threat.
14. May an employer require an employee to provide medical certification
that s/he can safely perform a physical agility or physical fitness test?
Yes. Employers that require physical agility or physical fitness tests may
ask an employee to have a physician certify whether s/he can safely perform
the test. (63) In this situation, however, the employer is entitled to
obtain only a note simply stating that the employee can safely perform the
test or, alternatively, an explanation of the reason(s) why the employee
cannot perform the test. An employer may not obtain the employee's complete
medical records or information about any conditions that do not affect the
employee's ability to perform the physical agility or physical fitness test
safely.
C. Disability-Related Inquiries and Medical Examinations Relating to
Leave(64)
15. May an employer request an employee to provide a doctor's note or other
explanation to substantiate his/her use of sick leave?
Yes. An employer is entitled to know why an employee is requesting sick
leave. An employer, therefore, may ask an employee to justify his/her use of
sick leave by providing a doctor's note or other explanation, as long as it
has a policy or practice of requiring all employees, with and without
disabilities, to do so.
16. May an employer require periodic updates when an employee is on extended
leave because of a medical condition?
Yes. If the employee's request for leave did not specify an exact or fairly
specific return date (e.g., October 4 or around the second week of November)
or if the employee needs continued leave beyond what was originally granted,
the employer may require the employee to provide periodic updates on his/her
condition and possible date of return.(65) However, where the employer has
granted a fixed period of extended leave and the employee has not requested
additional leave, the employer cannot require the employee to provide
periodic updates. Employers, of course, may call employees on extended leave
to check on their progress or to express concern for their health.
17. May an employer make disability-related inquiries or require a medical
examinationwhen an employee who has been on leave for a medical condition
seeks to return to work?
Yes. If an employer has a reasonable belief that an employee's present
ability to perform essential job functions will be impaired by a medical
condition or that s/he will pose a direct threat due to a medical condition,
the employer may make disability-related inquiries or require the employee
to submit to a medical examination. Any inquiries or examination, however,
must be limited in scope to what is needed to make an assessment of the
employee's ability to work. Usually, inquiries or examinations related to
the specific medical condition for which the employee took leave will be all
that is warranted. The employer may not use the employee's leave as a
justification for making far-ranging disability-related inquiries or
requiring an unrelated medical examination.
Example A: A data entry clerk broke her leg while skiing and was out of
work for four weeks, after which time she returned to work on crutches. In
this case, the employer does not have a reasonable belief, based on
objective evidence, either that the clerk's ability to perform her essential
job functions will be impaired by a medical condition or that she will pose
a direct threat due to a medical condition. The employer, therefore, may not
make any disability-related inquiries or require a medical examination but
generally may ask the clerk how she is doing and express concern about her
injury.
Example B: As the result of problems he was having with his medication, an
employee with a known psychiatric disability threatened several of his
co-workers and was disciplined. Shortly thereafter, he was hospitalized for
six weeks for treatment related to the condition. Two days after his
release, the employee returns to work with a note from his doctor indicating
only that he is "cleared to return to work." Because the employer has a
reasonable belief, based on objective evidence, that the employee will pose
a direct threat due to a medical condition, it may ask the employee for
additional documentation regarding his medication(s) or treatment or request
that he submit to a medical examination.
D. Periodic Testing and Monitoring
In most instances, an employer's need to make disability-related inquiries
or require medical examinations will be triggered by evidence of current
performance problems or observable evidence suggesting that a particular
employee will pose a direct threat. The following questions, however,
address situations in which disability-related inquiries and medical
examinations of employees may be permissible absent such evidence.
18. May employers require periodic medical examinations of employees in
positions affecting public safety (e.g., police officers and firefighters)?
Yes. In limited circumstances, periodic medical examinations of employees in
positions affecting public safety that are narrowly tailored to address
specific job-related concerns are permissible.(66)
Example A: A fire department requires employees for whom firefighting is an
essential job function to have a comprehensive visual examination every two
years and to have an annual electrocardiogram because it is concerned that
certain visual disorders and heart problems will affect their ability to do
their job without posing a direct threat. These periodic medical
examinations are permitted by the ADA.
Example B: A police department may not periodically test all of its officers
to determine whether they are HIV-positive because a diagnosis of that
condition alone is not likely to result in an inability or impaired ability
to perform essential functions that would result in a direct threat.
Example C: A private security company may require its armed security
officers who are expected to pursue and detain fleeing criminal suspects to
have periodic blood pressure screenings and stress tests because it is
concerned about the risk of harm to the public that could result if an
officer has a sudden stroke.
If an employer decides to terminate or take other adverse action against an
employee with a disability based on the results of a medical examination, it
must demonstrate that the employee is unable to perform his/her essential
job functions or, in fact, poses a direct threat that cannot be eliminated
or reduced by reasonable accommodation.(67) Therefore, when an employer
discovers that an employee has a condition for which it lawfully may test as
part of a periodic medical examination, it may make additional inquiries or
require additional medical examinations that are necessary to determine
whether the employee currently is unable to perform his/her essential job
functions or poses a direct threat due to the condition.
19. May an employer subject an employee, who has been off from work in an
alcohol rehabilitation program, to periodic alcohol testing when s/he
returns to work?
Yes, but only if the employer has a reasonable belief, based on objective
evidence, that the employee will pose a direct threat in the absence of
periodic testing. Such a reasonable belief requires an individualized
assessment of the employee and his/her position and cannot be based on
general assumptions. Employers also may conduct periodic alcohol testing
pursuant to "last chance" agreements.(68)
In determining whether to subject an employee to periodic alcohol testing
(in the absence of a "last chance" agreement), the employer should consider
the safety risks associated with the position the employee holds, the
consequences of the employee's inability or impaired ability to perform
his/her job functions, and how recently the event(s) occurred that cause the
employer to believe that the employee will pose a direct threat (e.g., how
long the individual has been an employee, when s/he completed
rehabilitation, whether s/he previously has relapsed). Further, the duration
and frequency of the testing must be designed to address particular safety
concerns and should not be used to harass, intimidate, or retaliate against
the employee because of his/her disability. Where the employee repeatedly
has tested negative for alcohol, continued testing may not be job-related
and consistent with business necessity because the employer no longer may
have a reasonable belief that the employee will pose a direct threat.
Example A: Three months after being hired, a city bus driver informed his
supervisor of his alcoholism and requested leave to enroll in a
rehabilitation program. The driver explained that he had not had a drink in
more than 10 years until he recently started having a couple of beers before
bed to deal with the recent separation from his wife. After four months of
rehabilitation and counseling, the driver was cleared to return to work.
Given the safety risks associated with the bus driver's position, his short
period of employment, and recent completion of rehabilitation, the city can
show that it would be job-related and consistent with business necessity to
subject the driver to frequent periodic alcohol tests following his return
to work.
Example B: An attorney has been off from work in a residential alcohol
treatment program for six weeks and has been cleared to return to work. Her
supervisor wants to perform periodic alcohol tests to determine whether the
attorney has resumed drinking. Assuming that there is no evidence that the
attorney will pose a direct threat, the employer cannot show that periodic
alcohol testing would be job-related and consistent with business
necessity.(69)
OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF
EMPLOYEES
20. May an Employee Assistance Program (EAP)(70) counselor ask an employee
seeking help for personal problems about any physical or mental condition(s)
s/he may have?
Yes. An EAP counselor may ask employees about their medical condition(s) if
s/he: (1) does not act for or on behalf of the employer; (2) is obligated to
shield any information the employee reveals from decision makers; and, (3)
has no power to affect employment decisions. Many employers contract with
EAP counselors so that employees can voluntarily and confidentially seek
professional counseling for personal or work-related problems without having
to be concerned that their employment status will be affected because they
sought help.(71)
21. May an employer make disability-related inquiries and require medical
examinations that are required or necessitated by another federal law or
regulation?
Yes. An employer may make disability-related inquiries and require employees
to submit to medical examinations that are mandated or necessitated by
another federal law or regulation.(72) For example, under federal safety
regulations, interstate bus and truck drivers must undergo medical
examinations at least once every two years. Similarly, airline pilots and
flight attendants must continually meet certain medical requirements.(73)
Other federal laws that require medical examinations or medical inquiries of
employees without violating the ADA include:
•the Occupational Safety and Health Act;(74)
•the Federal Mine Health and Safety Act;(75) and
•other federal statutes that require employees exposed to toxic or hazardous
substances to be medically monitored at specific intervals.(76)
22. May an employer make disability-related inquiries or conduct medical
examinations that are part of its voluntary wellness program?
Yes. The ADA allows employers to conduct voluntary medical examinations and
activities, including voluntary medical histories, which are part of an
employee health program without having to show that they are job-related and
consistent with business necessity, as long as any medical records acquired
as part of the wellness program are kept confidential and separate from
personnel records.(77) These programs often include blood pressure
screening, cholesterol testing, glaucoma testing, and cancer detection
screening. Employees may be asked disability-related questions and may be
given medical examinations pursuant to such voluntary wellness programs.(78)
A wellness program is "voluntary" as long as an employer neither requires
participation nor penalizes employees who do not participate.
23. May an employer ask employees to voluntarily self-identify as persons
with disabilities for affirmative action purposes?
Yes. An employer may ask employees to voluntarily self-identify as
individuals with disabilities when the employer is:
•undertaking affirmative action because of a federal, state, or local law
(including a veterans' preference law) that requires affirmative action for
individuals with disabilities (i.e., the law requires some action to be
taken on behalf of such individuals); or,
•voluntarily using the information to benefit individuals with
disabilities.(79)
If an employer invites employees to voluntarily self-identify in connection
with the above-mentioned situations, the employer must indicate clearly and
conspicuously on any written questionnaire used for this purpose, or state
clearly (if no written questionnaire is used), that: (1) the specific
information requested is intended for use solely in connection with its
affirmative action obligations or its voluntary affirmative action efforts;
and, (2) the specific information is being requested on a voluntary basis,
that it will be kept confidential in accordance with the ADA, that refusal
to provide it will not subject the employee to any adverse treatment, and
that it will be used only in accordance with the ADA.(80)
In order to invite self-identification for purposes of an affirmative action
program that is voluntarily undertaken or undertaken pursuant to a law that
encourages (rather than requires) affirmative action, an employer must be
taking some action that actually benefits individuals with disabilities. The
invitation to self-identify also must be necessary in order to provide the
benefit.
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INDEX
Note: Page numbering and references removed for on-line version.
Affirmative action
Airline pilots
Alcohol testing
Application for new job
Centers for Disease Control
Confidentiality
Direct threat
Disability-related inquiry, defined
Documentation
conflicting
insufficient
requests for reasonable accommodation
Employee Assistance Program (EAP)
Employee, defined
Employer's doctor
Failure to respond to disability-related inquiry
Failure to submit to medical examination
Family and Medical Leave Act (FMLA)
Firefighters
Genetic information
HIV
Illegal use of drugs
Information from another person
Job-related and consistent with business necessity, defined
Medical certification
Medical examination, defined
Performance problems
Periodic medical examinations
Periodic updates
Police officers
Pregnancy
Prescription drugs and medications
Procedures and tests
blood analyses
blood pressure screening
breath analyses
cholesterol testing
diagnostic procedures
hair analyses
nerve conduction tests
physical agility tests
physical fitness tests
polygraph examinations
psychological tests
pulmonary function tests
range-of-motion tests
saliva analyses
urine analyses
vision tests
Public safety positions
Reasonable accommodation
Return to work
Sick leave
Voluntary self-identification
Voluntary wellness program
Workers' compensation
----------------------------------------------------------------------------
----
1. 42 U.S.C. §§ 12101-12117, 12201-12213 (1994)(codified as amended).
2. Enforcement Guidance: Preemployment Disability-Related Questions and
Medical Examinations Under the Americans with Disabilities Act of 1990, 8
FEP Manual (BNA) 405:7191 (1995) [hereinafter Preemployment Questions and
Medical Examinations]. This and other ADA guidances are available through
the Internet at http://www.eeoc.gov.
3. Pursuant to the Rehabilitation Act Amendment of 1992, the ADA's
employment standards apply to all nonaffirmative action employment
discrimination claims of individuals with disabilities who are federal
employees or applicants for federal employment. Pub. L. No. 102-569 §503(b),
106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C.
§791(g)(1994)). Accordingly, the analysis in the guidance applies to federal
sector complaints of nonaffirmative action employment discrimination arising
under section 501 of the Rehabilitation Act of 1973. It also applies to
complaints of nonaffirmative action employment discrimination arising under
section 503 and to employment discrimination under section 504 of the
Rehabilitation Act. Id. at §§793 (d), 794(d)(1994).
4. The purpose of this guidance is to explain when it is permissible for an
employer to make a disability-related inquiry or require a medical
examination of an employee. It does not focus on what actions an employer
may take based on what it learns in response to such an inquiry or after it
receives the result of a medical examination.
5. In the ADA legislative history, Congress stated that an employee's
"actual performance on the job is, of course, the best measure of ability to
do the job." S. Rep. No. 101-116, at 39 (1989); H.R. Rep. No. 101-485, pt.
2, at 75 (1990).
6. However, where an applicant has an obvious disability, and the employer
has a reasonable belief that s/he will need a reasonable accommodation to
perform specific job functions, the employer may ask whether the applicant
needs a reasonable accommodation and, if so, what type of accommodation.
These same two questions may be asked when an individual voluntarily
discloses a nonvisible disability or voluntarily tells the employer that
s/he will need a reasonable accommodation to perform a job. 42 U.S.C.
§12112(c)(B)(1994); 29 C.F.R. §1630.13(a)(1998); see also Preemployment
Questions and Medical Examinations, supra note 2, at 6-8, 8 FEP at
405:7193-94; EEOC Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities at 13-15, 8 FEP Manual (BNA) 405:7461,
7467-68 (1997)[hereinafter The ADA and Psychiatric Disabilities];
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act at 20-21, 8 FEP Manual (BNA) 405:7601,
7611(1999)[hereinafter Reasonable Accommodation Under the ADA]. Under
certain circumstances, an employer also may ask applicants to self-identify
as individuals with disabilities for purposes of its affirmative action
program. See Preemployment Questions and Medical Examinations, supra note 2,
at 12-13, 8 FEP at 405:7196-97.
7. 42 U.S.C. §12112(d)(3)(1994); 29 C.F.R. §1630.14(b)(1998). However, if an
individual is screened out because of a disability, the employer must show
that the exclusionary criterion is job-related and consistent with business
necessity. 42 U.S.C. §12112(b)(6)(1994); 29 C.F.R. §§1630.10,
1630.14(b)(3)(1998).
8. 42 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. §1630.14(c)(1998).
9. See infra note 77.
10. 42 U.S.C. §§12112(d)(3)(B), (4)(C)(1994); 29 C.F.R.
§1630.14(b)(1)(1998). The Commission also has interpreted the ADA to allow
employers to disclose medical information to state workers' compensation
offices, state second injury funds, workers' compensation insurance
carriers, and to health care professionals when seeking advice in making
reasonable accommodation determinations. 29 C.F.R. pt. 1630, app.
§1630.14(b)(1998). Employers also may use medical information for insurance
purposes. Id. See also Preemployment Questions and Medical Examinations,
supra note 2, at 21-23, 8 FEP at 405:7201; EEOC Enforcement Guidance:
Workers' Compensation and the ADA at 7, 8 FEP Manual (BNA) 405:7391, 7394
(1996)[hereinafter Workers' Compensation and the ADA].
11. "Covered entity" means an employer, employment agency, labor
organization, or joint labor management committee. 29 C.F.R.
§1630.2(b)(1998). For simplicity, this guidance refers to all covered
entities as "employers." The definition of "employer" includes persons who
are "agents" of the employer, such as managers, supervisors, or others who
act for the employer (e.g., agencies used to conduct background checks on
applicants and employees). 42 U.S.C. §12111(5)(1994).
12. 42 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. §1630.14(c)(1998). See infra
Question 5 and accompanying text for a discussion of what the "job-related
and consistent with business necessity" standard means.
13. See e.g., 42 U.S.C. §12112(a)(1994)(no entity shall discriminate against
a qualified individual with a disability because of the disability of such
individual).
14. Congress was particularly concerned about questions that allowed
employers to learn which employees have disabilities that are not apparent
from observation. It concluded that the only way to protect employees with
nonvisible disabilities is to prohibit employers from making
disability-related inquiries and requiring medical examinations that are not
job-related and consistent with business necessity. See S. Rep. No. 101-116
at 39-40 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990) ("An inquiry or
medical examination that is not job-related serves no legitimate employer
purpose, but simply serves to stigmatize the person with a disability." A
person with cancer "may object merely to being identified, independent of
the consequences [since] being identified as [a person with a disability]
often carries both blatant and subtle stigma").
15. See Roe v. Cheyenne Mountain Resort, 124 F.3d 1221, 1229, 7 AD Cas.
(BNA) 779, 783 (10th Cir. 1997)("it makes little sense to require an
employee to demonstrate that he has a disability to prevent his employer
from inquiring as to whether or not he has a disability"). Although Roe
involved only the issue of disability-related inquiries of employees, the
same rationale applies to medical examinations of employees and to
disability-related inquiries and medical examinations of applicants. The
ADA's restrictions on disability-related inquiries and medical examinations
apply to individuals both with and without disabilities at all three stages:
pre-offer, post-offer, and during employment. See also Griffin v. Steeltek
,Inc., 160 F.3d 591, 595, 8 AD Cas.1249, 1252 (10th Cir. 1998), cert.
denied, 119 S.Ct. 1455, 9 AD Cas. 416 (1999)(a job applicant without a
disability can sue under the ADA regarding medical history questions);
Gonzales v. Sandoval County, 2 F.Supp. 2d 1442, 1445, 8 AD Cas.1337, 1340
(D. N.M. 1998)(plaintiff need not establish disability to state a claim for
a prohibited inquiry under the ADA); Fredenburg v. Contra Costa County
Department of Health Services, 172 F.3d 1176, 9 AD Cas. 385 (9th Cir.
1999)(requiring plaintiffs to prove that they are persons with disabilities
to challenge a medical examination would render §12112(d)(4)(A) of the ADA
"nugatory"; thus, plaintiffs need not prove that they are qualified
individuals with a disability to bring claims challenging the scope of
medical examinations under the ADA).
Some courts, however, have held that to bring a claim alleging a violation
of the ADA's prohibition against disability-related inquiries and medical
examinations, an individual must demonstrate that s/he is a qualified
individual with a disability. See e.g., Armstrong v. Turner Industries,
Inc., 141 F.3d 554, 558, 8 AD Cas. (BNA) 118, 124 (5th Cir. 1998), aff'g
950 F. Supp. 162, 7 AD Cas. 875 (M.D. La. 1996) (plaintiff must be a
qualified individual with a disability to challenge an illegal preemployment
inquiry); Hunter v. Habegger Corp., 139 F.3d 901(7th Cir. 1998)("it seems
clear that in order to assert that one has been discriminated against
because of an improper inquiry, that person must also have been otherwise
qualified"). For the reasons stated above, it is the Commission's position
that the plain language of the statute explicitly protects individuals with
and without disabilities from improper disability-related inquiries and
medical examinations.
16. For example, employers may make disability-related inquiries and require
medical examinations that are required or necessitated by another federal
law or regulation. See infra Question 21 and accompanying text. Employers
also may make disability-related inquiries and conduct medical examinations
that are part of their voluntary wellness programs. See infra Question 22
and accompanying text.
17. Preemployment Questions and Medical Examinations, supra note 2, at 4-13,
8 FEP at 405:7191, 7192-97.
18. Id. at 4, 8 FEP at 405:7192.
19. Id. at 4-13, 8 FEP at 405:7192-97.
20. The prohibition against making disability-related inquiries applies to
inquiries made directly to an employee, as well as to indirect or
surreptitious inquiries such as a search through an employee's belongings to
confirm an employer's suspicions about an employee's medical condition. See
Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190, 3 AD Cas. (BNA) 1322 (E.D.
Pa. 1994) (employer conducted an unlawful medical inquiry when it searched
the office of an employee it knew was sick and discovered a letter
indicating the employee had AIDS).
21. As used in this guidance, the term "genetic information" has the same
definition as "protected genetic information" in Executive Order 13145. In
general, genetic information is information about an individual's genetic
tests, information about the genetic tests of an individual's family
members, or information about the occurrence of a disease, medical
condition, or disorder in family members of the individual. See Exec. Order
No. 13,145, To Prohibit Discrimination in Federal Employment Based on
Genetic Information, 65 Fed. Reg. 6877 (Feb. 8, 2000).
22. See Griffin v. Steeltek, Inc., 160 F.3d 591, 594, 8 AD Cas. (BNA) 1249,
1252 (10th Cir. 1998), cert. denied, 119 S.Ct. 1455, 9 AD. Cas. 416 (1999)
(on its application for employment, employer unlawfully asked: "Have you
received workers' compensation or disability payments? If yes, describe.").
23. See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 7
AD Cas. (BNA) 779 (10th Cir. 1997)(employer had a policy of requiring all
employees to report every drug, including legal prescription drugs); Krocka
v. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997)(police department
implemented a policy of monitoring employees taking psychotropic
medication).
24. Preemployment Questions and Medical Examinations, supra note 2, at 9, 8
FEP at 405:7195.
25. Preemployment Questions and Medical Examinations, supra note 2, at 9, 8
FEP at 405:7195.
26. Employers also may maintain and enforce rules prohibiting employees from
being under the influence of alcohol in the workplace and may conduct
alcohol testing for this purpose if they have a reasonable belief that an
employee may be under the influence of alcohol at work.
27. An individual who currently uses drugs illegally is not protected under
the ADA; therefore, questions about current illegal drug use are not
disability-related inquiries. 42 U.S.C. §12114(a)(1994); 29 C.F.R.
§1630.3(a)(1998). However, questions about past addiction to illegal drugs
or questions about whether an employee ever has participated in a
rehabilitation program are disability-related because past drug addiction
generally is a disability. Individuals who were addicted to drugs, but are
not currently using drugs illegally, are protected under the ADA. 29 C.F.R.
§1630.3(b)(1),(2)(1998).
28. Pregnancy is not a disability for purposes of the ADA. 29 C.F.R. pt.
1630, app. §1630.2(h)(1998). However, discrimination on that basis may
violate the Pregnancy Discrimination Act amendments to Title VII. 42 U.S.C.
§2000e(k)(1994).
29. Preemployment Questions and Medical Examinations supra note 2, at 14, 8
FEP at 405:7197.
30. Id.
31. See supra note 26.
32. See supra note 27.
33. Under the ADA, polygraph examinations, which purportedly measure whether
a person believes s/he is telling the truth in response to a particular
inquiry, are not medical examinations. However, an employer cannot ask
disability-related questions as part of the examination. See Preemployment
Questions and Medical Examinations, supra note 2, at 17, 8 FEP at 405:7199.
34. 42 U.S.C. §12111(4)(1994); 29 C.F.R. §1630.2(f)(1998). This term has the
same meaning as it does under Title VII of the Civil Rights Act of 1964. 42
U.S.C. §2000e(f)(1994).
35. In its guidance on contingent workers, the Commission lists additional
factors that indicate when a worker is an employee and explains that other
aspects of the relationship between the parties may affect the determination
of whether an employee-employer relationship exists. See EEOC Enforcement
Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary
Employment Agencies and Other Staffing Firms at 4-7, 8 FEP Manual (BNA)
405:7551, 7554-55 (1997).
36. An employee in this situation is an applicant with respect to rules
concerning disability-related inquiries and medical examinations but not for
employee benefits (e.g., retirement, health and life insurance, leave
accrual) or other purposes.
37. Where the employer already has medical information concerning an
individual at the pre-offer stage for the new position (e.g., information
obtained in connection with the individual's request for reasonable
accommodation in his/her current position) and this information causes the
employer to have a reasonable belief that the individual will need a
reasonable accommodation to perform the functions of the new job, the
employer may ask what type of reasonable accommodation would be needed to
perform the functions of the new job, before extending an offer for that
job. An employer, however, may not use its knowledge of an applicant's
disability to discriminate against him/her. The employer also may not use
the fact that the individual will need a reasonable accommodation in the new
position to deny him/her the new job unless it can show that providing the
accommodation would cause an undue hardship.
38. 42 U.S.C. §12112(d)(3)(1994); 29 C.F.R. §1630.14(b)(1998).
39. "Direct threat" means a significant risk of substantial harm that cannot
be eliminated or reduced by reasonable accommodation. 29 C.F.R.
§1630.2(r)(1998). Direct threat determinations must be based on an
individualized assessment of the individual's present ability to safely
perform the essential functions of the job, considering a reasonable medical
judgment relying on the most current medical knowledge and/or best available
objective evidence. Id. To determine whether an employee poses a direct
threat, the following factors should be considered: (1) the duration of the
risk; (2) the nature and severity of the potential harm; (3) the likelihood
that potential harm will occur; and, (4) the imminence of the potential
harm. Id.
40. The Commission explained this standard in its enforcement guidance on
The ADA and Psychiatric Disabilities, supra note 6, at 15, 8 FEP at
405:7468-69.
41. See infra Questions 18 and 19 and accompanying text.
42. See infra Question 6 and accompanying text.
43. See Yin v. State of California, 95 F.3d 864, 868, 5 AD Cas. (BNA) 1487,
1489 (9th Cir. 1996)(where employee missed an inordinate number of days and
her performance declined, employer's request that she submit to a medical
examination was job-related and consistent with business necessity).
44. See also infra Question 12.
45. 42 U.S.C. §12113 (d)(1994).
46. The most current list was published by HHS, Centers for Disease Control
and Prevention (CDC), in 1998. 63 Fed.Reg. 49359 (Sept. 15, 1998).
47. But see EEOC v. Prevo's Family Market, Inc., 135 F.3d 1089, 1097, 8 AD
Cas. (BNA) 401, 408 (6th Cir. 1998) (employer did not violate the ADA when
it required a produce clerk, who claimed to be HIV-positive, to submit to a
medical examination to determine whether he posed a direct threat). The
Commission believes that Prevo's was wrongly decided because the employer
did not base its belief that the employee posed a direct threat on
reasonably available objective evidence and, therefore, its request that the
employee submit to a medical examination was not job-related and consistent
with business necessity. A number of sources, such as the Centers for
Disease Control (www.cdc.gov), a physician or health care provider
knowledgeable about HIV and other infectious diseases, a state or local
health department, a public or university library, or a state or county
medical association can provide information about the likelihood of an
employee transmitting HIV or other infectious diseases to co-workers or the
public.
48. This guidance does not affect the obligation of a physician, under any
state law, to report cases of active tuberculosis to appropriate public
health authorities.
49. See Reasonable Accommodation Under the ADA, supra note 6, at 14-15, 8
FEP at 405:7608 for examples of other situations where employers may ask for
documentation; see also id. at 16-17, 8 FEP at 405: 7609 for examples of
situations in which an employer cannot ask for documentation in response to
a request for reasonable accommodation.
50. 29 C.F.R. pt. 1630 app. §1630.9 (1998); see also Preemployment Questions
and Medical Examinations, supra note 2, at 6, 8 FEP at 405: 7193; ADA and
Psychiatric Disabilities, supra note 6, at 22-23, 8 FEP at 405:7472-73;
Reasonable Accommodation Under the ADA, supra note 6, at 12-13, 8 FEP at
405: 7607. See also Templeton v. Neodata Services, Inc., 162 F.3d 617, 618,
8 AD Cas. (BNA) 1615, 1616 (10th Cir. 1998)(employer's request for updated
medical information was reasonable in light of treating physician's letter
indicating doubt as to employee's ability to return to work as scheduled,
and employer needed the requested information to determine appropriate
reasonable accommodation for employee in event she was able to return to
work).
51. See Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221, 1229, 7
AD Cas. (BNA) 779, 784 (10th Cir. 1997) (employer, who implemented a drug
and alcohol policy that included many permissible inquiries but also asked
employees to inform the employer of every drug they were taking, including
legal prescription drugs, violated the ADA by failing to demonstrate that
this inquiry was job-related and consistent with business necessity).
52. See Reasonable Accommodation Under the ADA, supra note 6, at 15, 8 FEP
at 405:7608.
53. See id. at 13, 8 FEP at 405:7607. (An "employer may require only the
documentation that is needed to establish that a person has an ADA
disability, and that the disability necessitates a reasonable
accommodation." If an employee has more than one disability, an employer can
request information pertaining only to the disability for which the employee
is requesting an accommodation.)
54. See Reasonable Accommodation Under the ADA, supra note 6, at 14-15,
16-17, 8 FEP at 405:7607-09. If the employee subsequently should request
another reasonable accommodation related to his sickle cell anemia, the
employer may ask for reasonable documentation relating to the new request
(if the need is not obvious). The employer, however, cannot ask again for
documentation that the employee has an ADA disability where the medical
information the employee provided in support of his first reasonable
accommodation request established the existence of a long-term impairment
that substantially limits a major life activity. Id. at 16-17, 8 FEP at 405:
7609.
55. See Reasonable Accommodation Under the ADA, supra note 6, at 15-16, 8
FEP at 405:7698; The ADA and Psychiatric Disabilities, supra note 6, at 23,
8 FEP at 405:7473.
56. See Reasonable Accommodation Under the ADA, supra note 6, at 15, 8 FEP
at 405:7608.
57. Since a doctor cannot disclose information about a patient without
his/her permission, an employer must obtain a release from the employee that
will permit the doctor to answer questions. The release should be clear as
to what information will be requested. See Reasonable Accommodation Under
the ADA, supra note 6, at 13-14, 8 FEP at 405:7607.
58. Id. at 15, 8 FEP at 405:7608-09.
59. Id. at 16, 8 FEP at 405:7609; The ADA and Psychiatric Disabilities,
supra note 6, at 23, 8 FEP at 405:7473.
60. See Reasonable Accommodation Under the ADA, supra note 6, at 15 (n.30),
8 FEP at 405:7609.
61. 29 C.F.R. §1630.2(r)(1998).
62. See Reasonable Accommodation Under the ADA, supra note 6, at 16, 8 FEP
at 405:7609; The ADA and Psychiatric Disabilities, supra note 6, at 23, 8
FEP at 405:7473.
63. See Preemployment Questions and Medical Examinations, supra note 2, at
16, 8 FEP at 405:7198.
64. The questions and answers in this section address situations in which an
employee has used sick, annual, or some other kind of leave because of a
medical condition, but has not taken leave under the Family and Medical
Leave Act (FMLA). 29 U.S.C. §2601(1994). Where an employee has been on leave
under the FMLA, the employer must comply with the requirements of that
statute. For example, the FMLA generally does not authorize an employer to
make its own determination of whether an employee is fit to return to work
but, rather, states that the employer must rely on the evaluation done by
the employee's own health care provider. Id. at §2613(b).
65. See Reasonable Accommodation Under the ADA, supra note 6, at 57, 8 FEP
at 405:7632.
66. See The ADA and Psychiatric Disabilities, supra note 6, at 16 (n.41), 8
FEP at 405:7469.
67. See supra note 39.
68. Some employers, including some federal government agencies, commonly use
"last chance agreements" in disciplinary actions involving employee use of
alcohol. Such agreements typically provide that, as a condition of continued
employment, employees must enter into a rehabilitation program and submit to
periodic alcohol testing.
69. The employer, however, may require the attorney to submit to an alcohol
test if it has objective evidence that she is violating a workplace policy
prohibiting all employees from being under the influence of alcohol on the
job. See supra note 26.
70. Generally, EAPs are confidential programs designed to assist employees
in coping with personal issues (e.g., substance abuse, grief) that may
interfere with their job performance.
71. See Vardiman v. Ford Motor Co., 981 F. Supp. 1279, 1283, 7 AD Cas. (BNA)
1068, 1072 (E.D. Mo. 1997)(EAP representative had no power to affect
employment decisions and, in fact, was obligated to shield the decision
makers from an employee's personal or substance abuse problems).
72. 29 C.F.R. 1630.15(e)(1998)("it may be a defense to a charge of
discrimination . . . that a challenged action is required or necessitated by
another Federal law or regulation . . . .").
73. See e.g., 14 C.F.R. pt. 67(1999)(Federal Aviation Administration (FAA)
and Department of Transportation (DOT) medical certifications); 14 C.F.R.
pt. 121, app. I (1999)(FAA and DOT drug testing program); 49 C.F.R. pt. 40
and app. (1999)(procedures for transportation workplace drug testing
programs); 49 C.F.R. 240.207(1996)(Federal Railroad Administration and DOT
procedures for making determination on hearing and visual acuity); 49 C.F.R.
pt. 391(1999)(Federal Highway Administration and DOT medical certification
requirements); 49 C.F.R. pt. 653(1999)(Federal Transit Administration (FTA)
procedures for prevention of prohibited drug use in transit operations); 49
C.F.R. pt. 654(1999)(FTA procedures for prevention of alcohol abuse in
transit operations).
74. 29 U.S.C. §§651-678 (1994).
75. 30 U.S.C. §§801-962 (1994).
76. See e.g., The Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. §9601(1994).
77. See H.R. Rep. No. 101-485, pt. 2, at 75 (1990) ("As long as the programs
are voluntary and the medical records are maintained in a confidential
manner and not used for the purpose of limiting health insurance eligibility
or preventing occupational advancement, these activities would fall within
the purview of accepted activities.").
78. If a program simply promotes a healthier life style but does not ask any
disability-related questions or require medical examinations (e.g., a
smoking cessation program that is available to anyone who smokes and only
asks participants to disclose how much they smoke), it is not subject to the
ADA's requirements concerning disability-related inquiries and medical
examinations.
79. See Preemployment Questions and Medical Examinations, supra note 2, at
12, 8 FEP at 405:7196-97.
80. Id.
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-----Original Message-----
From: blindlaw [mailto:blindlaw-bounces at nfbnet.org] On Behalf Of Jordan
Richardson
Sent: Thursday, September 12, 2013 3:06 PM
To: Blind Law Mailing List
Subject: [blindlaw] Employment Discrimination?
Hi all,
I was hired as a preschool tutor with the Minnesota Reading Corps (an
AmeriCorps affiliate). They work with different sites to hire tutors. They
have trained me and payed me, but when it came time for me to start working
they delayed my start and barred me from showing up at the site.
I have requested Braille as an accommodation and said that I can provide the
Braille myself. I would use dymo tape on flash cards and books. The
following paragraph is from an email from the
> "I understand Kay Tellinghuisen of The Family Partnership (TFP) has been
working with you to place a Reading Corps member. Because of the work
conditions which are presented at TFP for this position and the visual
impairment of your member, we are requesting your further help to ensure the
safety and success for all."
To this emailthere was a document attached titled "ADA Medical Provider
Report." As I understand I am under no obligation to fill out this form.
Is that correct? It is obvious the need for accommodations.
What are my legal obligations? What do you suggest I do next?
Respectfully,
Jordan Richardson
Sent from my iPad
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