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Americans with Disabilities Act (ADA)
Restrictions Protect Current Employees
What the Guidance Covers
New Questions Raised in Key Areas
When in Doubt, Consult Counsel
The
Americans with Disabilities Act ADA
doesn’t just protect against
disability discrimination—it also tells employers what they
can ask about an employee’s medical condition. The
EEOC guidelines
offer some insight into the ADA’s restrictions on these inquiries,
while raising other questions.
The
Equal Employment Opportunity Commission (EEOC) has issued a Guidance
addressing post-employment medical inquiries. According to the
agency, the Guidance is intended to answer the most frequently asked
questions that the EEOC has received regarding when employers may
obtain medical information from current employees. However, the
Guidance also raises additional questions that may confuse employers
trying to follow it.
ADA
Restrictions Protect Current Employees
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The ADA prohibits employers with 15
or more employees from discriminating against people with
disabilities. The ADA also generally prohibits covered employers
from asking applicants or current employees any medical questions
that might reveal the existence, nature, or severity of a
disability. (The EEOC addressed the issue of preemployment medical
inquiries and examinations in a guidance.) The statute contains
an exception for current employees: you may require an employee to
answer medical inquiries or take a medical examination if you can
show that the inquiries or examination are "job-related and
consistent with business necessity." What that phrase means has been
the subject of debate, since neither the ADA nor the regulations
define it. The EEOC Guidance attempts to explain what circumstances
will meet the criteria.
What the Guidance Covers
The Guidance answers 23 questions
addressing employee medical inquiries and examinations. In
particular, it discusses inquiries and exams that are considered
job-related and consistent with business necessity, documentation
and medical certification that can be required, inquiries and
examinations relating to leaves of absence, and periodic testing and
monitoring.
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The Guidance identifies several
circumstances when a medical inquiry or examination may meet the
job-related/business necessity standard, including:
1. When you reasonably believe that
an employee’s medical condition will impair his ability to perform
the essential job functions or will cause the employee to pose a
direct threat;
2. When you need additional
information to help evaluate an employee’s request for accommodation
and the disability is unknown or the need for accommodation is not
obvious;
3. When you know about a particular
employee’s medical condition and can attribute performance problems
to the condition; or
4. When you are given information
by a credible third party that an employee has a medical condition,
or when you observe symptoms indicating an employee may have a
medical condition, that will impair his ability to perform the
essential job duties or will pose a direct threat.
The Guidance also explains the type
of medical documentation you may require to substantiate a
disability and the need for accommodation. Specifically,
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. In addition, the Guidance confirms that you
may conduct periodic alcohol testing for employees who have been in
alcohol rehabilitation as part of a last-chance agreement.
New Questions Raised in
Key Areas
While the Guidance provides helpful
explanation, it also raises a few questions regarding prescription
drug use and return-to-work certifications. The Guidance indicates
that you can ask employees in "public safety" positions to disclose
when they are using prescription drugs only if the use would affect
or impair their ability to perform the job. You also must be able to
show that the employee’s inability or impaired ability will result
in a direct threat. The Guidance does not define the term "public
safety," but gives examples involving armed police officers and
airline pilots. It leaves open the question whether employers may
ask about prescription drugs for other safety risks that do not
involve the public, such as when employees who operate machinery may
endanger coworkers or themselves by taking certain prescription
drugs while working. In addition, it seems to preclude questions
about prescription drug use that affects productivity.
The Guidance also limits when you
may require medical certification of an employee’s ability to return
to work after sick leave or leave for a medical condition not
covered by the
Family and Medical Leave Act (FMLA). (In a footnote,
the Guidance specifically states that all of its provisions relating
to leaves apply to those not taken under the FMLA and that employers
must comply with the FMLA’s requirements.) To require the
certification, you must have "a reasonable belief that an employee’s
present ability to perform essential job functions will be impaired
by a medical condition or that [the employee] will pose a direct
threat due to a medical condition." This interpretation appears to
conflict with previous EEOC guidance in its ADA Technical Assistance
Manual (TAM). The TAM indicates that employers may require
return-to-work certification to determine if the person can perform
the essential functions of the job (as opposed to having to
affirmatively believe the employee cannot).
In addition, the Guidance also may
limit FMLA return-to-work certifications even though it indicates it
does not apply to FMLA leaves. The FMLA regulations allow employers
to require a return-to-work certification for all medical leaves,
without limitation, as long as the requirement is applied uniformly
to all similarly situated employees returning from leave, not just
those on FMLA leave. There- fore, if you comply with the Guidance by
limiting return-to-work certifications for non-FMLA leaves, you also
may have to apply the same standard to FMLA leaves.
When in Doubt, Consult
Counsel
Overall, the new ADA Guidance
provides helpful analysis regarding when you can require employees
to answer questions regarding their medical condition or take
medical examinations. However, since it also raises questions about
other issues, such as asking about prescription drug use and
return-to-work certifications, you should consult legal counsel to
determine how to apply the Guidance. Although the Guidance does not
have the same force of law as the statute or even the regulations,
the EEOC will follow it when it investigates claims, and courts may
rely on it to interpret the
Americans with Disabilities Act (ADA).
For more information on
EEOC
Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act,
see
www.eeoc.gov/docs/guidance-inquiries.html.
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