ADA In Focus - Volume 6, Number 1 Winter 2001
DISABILITY RELATED INQUIRIES AND MEDICAL EXAMS: What, When, How, Why?
The U.S. Equal Employment Opportunities Commission recently issued a guidance document that clarifies its position on disability related questions and medical examinations in ADA?covered employment. The new guidance document focuses in more detail on issues related to current employees, although it reiterates a few points in relation to applicants. It is prohibited in the pre-offer stage for potential employers to make disability related inquiries or subject an applicant to a medical exam, regardless of whether they are job?related.Once an applicant has been given a conditional job offer (this is known as the post?offer, pre?employment phase), the door is open for questions and exams. As long as all entering employees in the same category are tested the same way, any question may be asked or exam given, even if they are not job-related. If the employer withdraws the job offer based on the results of inquiries or exams, however, the "exclusionary criteria" must be job related and consistent with business necessity; in other words, the test results would have shown that the applicant would be unable to perform the job, even with reasonable accommodation. Once an employee has started work, inquiries and exams can be made only if they are job related and consistent with business necessity. Disability Related Inquiries Applicants may be asked if they can perform the duties of the job, and, in some cases where disability is apparent or has been voluntarily disclosed, how they will perform the job. Employers may discuss in the pre?offer stage the need for reasonable accommodations for the application process, but not for job performance, unless the employer reasonably believes accommodation will be needed, or the applicant has voluntarily disclosed a disability and requested accommodation. Employers may not question applicants further than is necessary to determine what accommodations are needed. Even when an applicant voluntarily discloses a disability, an employer cannot pursue questions about cause, severity, prognosis, etc. Medical Exams Job Related and Consistent with Business Necessity This may occur when an employer notices performance problems, observes symptoms, or is given reliable information by a credible third party. In this last case, the need to pursue inquiries or exams should be evaluated based on the seriousness of the possible condition, how the third party obtained the information, and other circumstances. Routine, periodic testing to monitor employees' physical or mental conditions are permissible only in limited circumstances, such as public safety jobs. For example, because of the nature of their jobs, it may be reasonable to subject police officers to periodic blood pressure checks. Routinely testing them for HIV, though, might not be reasonable, as an HIV diagnosis alone will not likely impair ability or pose a direct threat. Same Employee, Different Job Therefore, the "applicant/employee" may be subject to inquiries and exams that other applicants are subject to in the post?offer, pre?employment phase. Even though the "applicant" is a current employee, in this situation, the inquiries or exams would not have to be job related and consistent with business necessity. Documentation Likewise, when an employer has reason to believe that an employee poses a direct threat, it may require that the employee see a company doctor. When an employer requires an evaluation by its own doctor, the employer must pay the cost and the exam must be limited in nature and scope to the issue at hand. Employers may not obtain medical information, either from its own or the employee's doctor, that is unrelated to establishing the need for specific accommodation or fitness for work. An employer should be cautious about relying on the opinion of its doctor when the opinion contradicts that of the employee's own doctor, who may have more knowledge of his patient. When employers must evaluate conflicting medical information, they should consider each doctor's area of expertise and knowledge of the job in question. Decisions about whether an employee poses a direct threat must be objective, not speculative. Employees Without Disabilities Several courts also have taken this position, including the 10th Circuit, which wrote in Roe v. Cheyenne Mountain Resort that "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." Other courts have held the opposite, that individuals without disabilities cannot bring these kinds of claims. The 7th Circuit wrote in Hunter v. Habegger Corp. that "in order to assert that one has been discriminated against . . .that person must also have been otherwise qualified." The new guidance document is posted to EEOC's website at eeoc.gov/docs/guidance-inquiries.html. It is also available from the ADA & IT Information Center.
Questions are considered "disability related" if they are likely to illicit information about a disability. Traditionally, employers routinely asked applicants about certain conditions, illnesses, or injuries. They asked about family medical history, medications, and workers' compensation claims. Job applications included many variations of the ever popular "do you have any physical condition that would prevent you from doing the job for which you are applying?" (Since there was rarely mention of "reasonable accommodations," many people found these questions confusing. Few people would say "Yes, I'm applying for a job I can't do.").
Medical exams include the types of tests and exams that may be given or interpreted by medical or health care professionals in clinical settings. Tests to determine illegal drug use, as well as agility and physical fitness tests are not considered medical exams, and can be given at any stage of employment. For example, an applicant (pre?offer) can be asked to demonstrate lifting a 30 pound box and carrying it 20 feet. The applicant cannot, however, be subjected to a pulse and blood pressure check following the demonstration. Similarly, an employer can give a test designed to determine if an applicant is likely to lie or steal, but not a test that is designed to identify conditions such as depression or anxiety disorder.
Current employees can only be subjected to disability related questions or medical exams if they are job related and consistent with business necessity. This means an employer must have a "reasonable belief, based on objective evidence" that the employee's ability to perform essential functions is impaired or that an employee poses a direct threat.
When a current employee applies for a different position within the company, they should be treated as a new applicant. They cannot be asked disability related questions or subjected to medical exams until a job has been offered, and company personnel must maintain required confidentiality of medical information they may already have. Just as employers cannot obtain medical information about pre?offer applicants from previous employers or other sources, they cannot obtain it from internal sources.
When accommodations are requested during the employment process, employers can require documentation of the need. Employees must be allowed to provide sufficient documentation before an employer submits them to a medical exam. Documentation is sufficient if it substantiates the presence of a disability and the need for the accommodation.
The EEOC has taken the position that employees without disabilities are protected from illegal inquiries and medical exams. The ADA states that an employer "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 or severity of the disability, unless such examination is shown to be job?related and consistent with business necessity." The EEOC feels that the use of the term "employee," rather than the term "qualified individual with a disability" indicates Congress' intent to prevent employers from making frivolous inquiries. If an individual must prove that he has a disability in order to challenge a disability related inquiry, it would likely defeat the purpose of the prohibition.
Kathleen Desmond Porter will be joining the ADA & IT Information Center as our new Training Director. She was formerly with Arlington County, Virginia as the Disability Resources Coordinator. She holds a Master's degree in Adult Education, a certificate in mediation, and also is a certified sign language interpreter. We are extremely pleased to have her with us! Please feel free to call Kathleen about your training needs. The Center has a variety of training programs designed for service providers, job placement specialists, human resources managers, employers, people with disabilities, building code officials, architects and designers, state and local government staff, and businesses.
Another Welcome...
We also welcome Jo Roesle as our new Technical Assistance Specialist. Jo has a background in Independent Living services, including training on ADA and the Rehabilitation Act. Jo will replace Alison Levy, who recently left us to join the staff at the US Department of Transportation. Good Luck to Alison and Welcome to Jo!
MARK DERRY TO PRESENT AT TELECONFERENCE
A web-based presentation on the application of the Americans with Disabilities Act Accessibility Guidelines, presented by our Training Consultant, Mark Derry.
For more information, call the ADA & IT Information Center at 800-949-4232 (v/tty).
Following are the upcoming Distance Learning Program teleconferences.
For more information, call the ADA & IT Information Center at 800-949-4232 (v/tty).
The ADA & IT Information Center supports six Coalitions throughout the region, to provide ADA education and training. The Coalitions offer training sessions, distribute materials, and participate in community events. Each Coalition has a library of materials for loan. They also provide materials for conferences, trade fairs, or community events. Additionally, each Coalition maintains a listserv for monthly bulletins, resource information, announcements, and community news. Following is contact information for each Coalition, so please contact them to be added to the listserv, discuss training and information needs, or get involved in activities. Some of this year's highlights:
District of Columbia
The DC Access Coalition's Annual Conference was again a popular event, with sessions on assistive technology, transportation, and recent developments in case law. The Title II training program continued to provide assistance to DC government personnel; over 300 individuals participated in sessions on various topics, including architectural access, public services, and employment. The Coalition looks forward to a productive 2001 with new Coordinator Linda Royster.
Maryland
The Maryland Coalition held its annual conference, drawing 120 participants from several states. The sessions featured prominent speakers, including noted author and historian Hugh Gallagher, who drafted the Architectural Barriers Act of 1968. In the coming year, the coordination of the Coalition will be assumed by the Maryland Statewide Independent Living Council.
Pennsylvania
The Pennsylvania ADA Coalition (PADAC), provided 60 training sessions to diverse audiences on topics ranging from employment to facilities access. Several sessions were collaborations with other agencies, including Liberty Resources, the Center for Independent Living (CIL) in Philadelphia.
Delaware
The Delaware Statewide Coalition for the ADA (SCADA) provided eight ADA seminars, training 175 individuals from diverse backgrounds. Coalition members participated in several local health and community fairs, and statewide events such as the New Directions Conference and the Hispanic Festival.
Virginia
ADA Tenth Anniversary events figured prominently in Virginia's public awareness efforts this year. A rally and press conference was held, with Lt. Governor John Hager participating in the "Spirit of the ADA" torch relay. Coalition members continued their support of this event with a reception at the Endependence Center of Northern Virginia in Arlington.
West Virginia
The West Virginia Coalition expanded its "Adopt-a-Shelf" program to 10 public libraries throughout the state. It also implemented a comprehensive outreach and awareness program for youth, providing sessions to over thirty groups ranging from elementary through secondary grades. West Virginia will continue its efforts with the Northern West Virginia CIL.
To Contact the Coalitions:
MD: 410-319-4455 V/TTY
kimball.msilc@gte.net
DC: 202-234-7550 ext.6 V
202-822-9199 TTY
rights@erols.com
DE: 302-292-3066 V
lheller@magpage.com
WV: 304-636-0143 V/TTY
assist@neumedia.net
VA: 804-649-8481 ext. 325 V
Cash@CentralVa.net
PA: 814-863-0471 V/TTY
wwrl@psu.edu
Two separate lawsuits were recently filed in Pennsylvania that rely on last summer's landmark "Olmstead" decision. The Supreme Court ruled in that case that it is discriminatory for a state to unnecessarily institutionalize people with disabilities rather than provide them with community-based services. The Disabilities Law Project filed the suits against Norristown State Hospital, a psychiatric hospital, and the South Mountain Restoration Center, a nursing facility. Both suits allege violations of the ADA and section 504 of the Rehabilitation Act.
The suit against Norristown was filed on behalf of individual plaintiffs and claims that the state has continued to under-fund community support services, resulting in unnecessary confinement. The plaintiff in the suit against South Mountain is Pennsylvania Protection and Advocacy, Inc., whose staff visited the facility and reported extremely noisy and unclean conditions at the facility. The suit alleges that many of the facility's residents would be able to live in the community if appropriate supports were provided.The South Mountain suit also alleges violations of the Due Process Clause of the 14th Amendment, based on the claim that "Do Not Resuscitate" orders were issued without the consent of the residents.
VIRGINIA COURT: ADA Unconstitutional
Yet another federal District Court has decided that Congress exceeded its authority under the 14th Amendment when it enacted the ADA. In Bane v. Virginia Department of Corrections, a prisoner alleged violations of Title II. The Court held that the ADA does not remedy violations of Constitutional rights, but rather establishes new rights. Further, the Court decided that the reasonable accommodation requirements of Title I also go beyond the concept of equal protection. The Department of Corrections' motion to dismiss the lawsuit was granted.
INSURANCE COMPANY TO PAY $200,000
In an unusual case involving an insurance company and an individual policy holder, a consent decree resolved a lawsuit filed against the Warrior Insurance Group. When an Illinois woman applied for an auto insurance policy, she was asked whether she had any "nervous" or "medical" conditions. She indicated that she did not and the policy was put into effect. Her car was then stolen, and the company processed her claim, thereby discovering that she had a diagnosis of mild mental retardation. They asked her to provide medical documentation of her ability to drive. She supplied a doctor's report, but the company rescinded her policy based on the "misrepresentation" on her application. She initially filed a private lawsuit under both the ADA and state law. The US Department of Justice also intervened and further developed the complaint.
The judge refused to dismiss the complaint on several grounds, including the assertion that Title III requirements do not apply to insurance policies and that the company's actions were protected by the ADA's "safe harbor." The consent decree requires Warrior to revise its application process to ensure that applicants are not discriminated against based on actual or perceived disabilities. The monetary award includes a civil penalty of $25,000 to the US government.
DOJ FILES AMICUS BRIEF IN SEPTA CASE
In a lawsuit brought by Liberty Resources, Inc. and Consumer Connection against the Southeastern Pennsylvania Transportation Authority, it is alleged that SEPTA did not provide adequate paratransit services, by failing to comply with the "next-day response time" mandate, and by imposing "capacity constraints." DOJ argues that SEPTA has engaged in "patterns and practices" causing substantial numbers of trip denials, and ignores mechanisms designed to eliminate the problem. DOJ calls SEPTA's noncompliance with the next-day response time mandate "persistent." The brief can be found at usdoj.gov/crt/ada/septabr.htm.
Access Board Issues Final Rule on Play Areas
On October 18, 2000, the Access Board published accessibility guidelines for newly built or altered play areas under the ADA. The guidelines are one of the first of their kind in providing a comprehensive set of criteria for access to play areas. They cover the number of play components required to be accessible, accessible surfacing in play areas, ramp access and transfer system access to elevated structures, and access to soft contained play structures. The guidelines address play areas provided at schools, parks, child care facilities (except those based in the operator's home, which are exempt), and other facilities subject to the ADA.
The new guidelines as issued by the Board are not yet mandatory for the public. Instead, they set the minimum baseline for enforceable ADA standards maintained by the Department of Justice (DOJ). The requirements will become mandatory after DOJ incorporates them into its ADA standards. In the interim, the public may consult the new guidelines as a reference in providing access to playgrounds and play equipment. The guidelines are available from the ADA & IT Information Center.
Rights-of-Way Design Guide Available
The Access Board has published a helpful resource guide for public works and transportation agencies, designers, contractors, engineers, landscape architects, people with disabilities, and others interested in accessibility of roads, sidewalks, and related elements. "Accessible Rights-of-Way: A Design Guide" includes information on regulatory requirements and design tips for sidewalks, intersections, curb ramps, pedestrian crossings, signals, bus stops, parking, speed bumps, call boxes, signage, street furniture, and more.
The guide is available online in html or pdf versions in the publications section at the Board's website. Print copies also are available from the ADA & IT Information Center at 1-800-949-4232 v/tty.
Answers for Food Service Operators
The National Center for Access Unlimited and the National Restaurant Association have produced a comprehensive booklet entitled "ADA: Answers for Food Service Operators." The booklet includes information on ADA regulations, barrier removal, and customer service tips. It contains checklists to help identify barriers in areas often found in restaurants, such as counters, buffet lines, salad bars, and fixed seating, as well as common elements such as parking, entrances, and restrooms. To obtain a copy of this useful publication, contact the ADA & IT Information Center.
The U.S. Access Board and the American Institute of Architects (AIA) recently unveiled a web-based education course on the ADA Accessibility Guidelines (ADAAG). The course focuses on supplements to ADAAG that cover public sector facilities, including courthouses and prisons, and building elements designed for children's use. The course is posted to the Access Board's website at www.access-board.org.
The AIA also is making this course available on its website with continuing education credits available to its members and others. The interactive course includes case studies, discussion of key issues, and multiple choice questions; users can download a course workbook and copies of the guidelines. There is an introduction along with three subject area study modules:
- Judicial, Legislative, and Regulatory Facilities
- Detention and Correctional Facilities; and
- Building Elements Designed for Children's Use
Members can take any or all of the three sections and earn three learning credits per section under the AIA program.
www.usdoj.gov/crt/ada/aprsep00.htm The US Department of Justice's quarterly status report, entitled, "Enforcing the ADA."
www.eeoc.gov/docs/compensation.html The US Equal Employment Opportunities Commission new Compliance Manual section, with an analysis of compensation issues under anti-discrimination laws. A brief question-answer document is also posted at www.eeoc.gov/docs/qanda-compensation.html.
www.ed.gov/offices/OSERS/IDEA25th The US Department of Education Office of Special Education and Rehabilitation Services website for the 25th anniversary of the Individuals with Disabilities Education Act (IDEA).
www.protectionandadvocacy.com/foursupremecourtcases.htm The National Association of Protection and Advocacy Systems (NAPAS) summary of significant cases scheduled to be heard by the Supreme Court.
www.sba.gov/starting A Small Business Administration committee will focus efforts on enhancing business opportunities for people with disabilities.
ADA in Focus is published three times yearly by the ADA & IT Information Center for the Mid-Atlantic Region.
The staff of the ADA Information Center is available to provide information on all aspects of the ADA to individuals, businesses, government entities and organizations in the Mid-Atlantic Region.
ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.
Richard G. Luecking, President
Marian Vessels, Project Director
Nancy Horton, Assistant Director
Kathleen Desmond Porter, Training Director
Jo Roesle, Technical Assistance Specialist
Mark Derry, Training Consultant
Kimberly Antonelli, Editor
Donna Stewart, Administrative Assistant
TransCen, Inc. is a Rockville, MD-based firm specializing in human resources issues that impact workplace diversity. TransCen administers the ADA & IT Information Center, providing business and technical assistance to DE, DC, MD, PA, VA and WV.
This is a publication of the ADA & IT Information Center, funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133D60006). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Dept. of Education.
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