A recent spate of court rulings and federal enforcement actions* highlight the confusion and debate that continues to swirl around disability-related questions and medical examinations in employment situations. When, and to what extent, can employers require medical information or examinations? And, for that matter, what sorts of questions or exams are “medical”?
The U.S. Equal Employment Opportunity Commission (EEOC) issues regulations and guidance for the employment provisions (Title I) of the ADA. The Title I regulations are fairly brief in addressing the issue of “medical examinations and inquiries,” generally prohibiting them except in limited circumstances based on a number of factors, including the “stage” of an employment relationship. There are three stages of employment:
- Stage 1, or “pre-offer” includes applicants who have not been offered a job;
- Stage 2, or “post-offer/pre-employment” includes applicants who have been offered a job but who have not yet started work;
- Stage 3, or “employment” includes (you guessed it) on-the-job employees.
Stage 1: At the pre-offer stage, the prohibition against asking medical questions or requiring exams is very broad. An employer virtually cannot require any medical examinations or ask any disability-related questions of any applicants at all.
An exception is when an applicant asks for a reasonable accommodation in order to participate in the application process. For example, an applicant who is deaf might ask that an interpreter be provided for a job interview, or an applicant who has low vision might ask for the use of assistive technology to enlarge the on-screen text of a test that is given on the employer’s computer system.
If the applicant’s disability, and/or the need for the accommodation, is not obvious, the employer may obtain information sufficient to verify the disability and the need for the accommodation. The employer may not obtain any more information than is necessary to make that verification. An employer cannot, for example, ask for the applicant’s complete medical records, whether the applicant has disabilities or medical conditions other than the one(s) related to the request for accommodation, whether the applicant’s current condition is likely to worsen in the future, etc.
An employer can not generally ask applicants if they will need accommodations in order to perform the job, even if they have asked for accommodations for the application process. If, however, an employer has a reasonable belief that an applicant will need an accommodation on the job, or the applicant has voluntarily disclosed that she will need an accommodation, limited questions may be asked about the accommodation, but not about the disability.
For example, if an applicant voluntarily tells an interviewer that she will need scheduling considerations because she has a disability that prevents her from driving, and she uses public transportation to commute, the interviewer may ask questions about what days or times the applicant is able to work, but not questions about the nature of her disability.
An employer can always ask applicants about their ability to perform job duties and meet legitimate job requirements. An employer can even ask an applicant to describe or demonstrate how he will perform job duties if the employer has a reasonable belief that an applicant’s known disability (an obvious disability or a disability the applicant has voluntarily disclosed) would interfere with the individual’s ability to perform the job.
The EEOC provides an example that illustrates the application and limit of this allowance:
[A]n employer may ask an individual with one leg who applies for a position as a home washing machine repairman to demonstrate or to explain how, with or without reasonable accommodation, he would be able to transport himself and his tools down basement stairs. However, the employer may not inquire as to the nature or severity of the disability. Therefore, for example, the employer cannot ask how the individual lost the leg or whether the loss of the leg is indicative of an underlying impairment.
On the other hand, if the known disability of an applicant will not interfere with or prevent the performance of a job-related function, the employer may only request a description or demonstration by the applicant if it routinely makes such a request of all applicants in the same job category. So, for example, it would not be permitted for an employer to request that an applicant with one leg demonstrate his ability to assemble small parts while seated at a table, if the employer does not routinely request that all applicants provide such a demonstration.
Stage 2: After a job offer has been extended, but before the candidate begins job duties, an employer can ask medical questions or require exams, as long as all candidates entering the same job category are subjected to the same requirements. An employer can not single out individuals based on known or suspected disabilities and ask individualized questions or require individualized exams.
The questions or exams do not have to be related in any way to the particular job being offered. An employer can ask any and all medical questions and require the most extensive medical examinations it wants to at this point (although the wisdom of obtaining unnecessary medical information from job applicants is certainly debatable).
Although there is no restriction on the kind or extent of questions or exams at this stage, if a job offer is withdrawn because of the information obtained, the reason for the withdrawal must be “job-related and consistent with business necessity.” In other words, although employers can obtain virtually unlimited medical information at this point, they cannot use it to deny a job to an individual who can safely do the job, with or without reasonable accommodations.
Stage 3: Once workers are on the job, employers cannot even ask medical questions or require examinations unless they are “job related and consistent with business necessity.” Here, the coin flips; the process is usually individualized. While in “stage 2” an employer can ask medical questions and require exams in a sort of “wholesale” fashion, subjecting whole groups of entering job candidates to unlimited questions and exams, in “stage 3” individuals can be singled out, but only for valid reasons.
There are a few types of workers who, as groups, may be subjected to periodic medical monitoring; often such regular monitoring is required by other laws. Examples might include airline pilots, long-distance truck drivers, police officers, or workers who are exposed to toxic or hazardous materials.
But most employees cannot be required to answer questions or submit to medical examinations except in very limited circumstances, including (just as in the other stages of employment) when a worker requests a reasonable accommodation. If the disability or the need for an accommodation is not obvious, an employer can obtain information sufficient to verify the disability and the need.
Otherwise, before posing medical questions or conducting exams an employer must have a reasonable belief, based on objective evidence, that an employee may be unable to perform essential job functions or may pose a direct threat in the workplace. Assumptions, speculation, and rumors must not play into the process.
While the EEOC’S regulations focus on the distinctions between the three stages of employment, there isn’t much information about what actually constitutes a “medical” question or examination.
Additional guidance documents issued in the years following the implementation of the ADA helped to define and clarify the EEOC’s positions. Their Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations and Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA offer a great deal of discussion on these issues.
These publications use the term “disability-related” inquiries (while the regulations use the term “medical” inquiries), to help sort out the complexities. According to the EEOC, a disability-related inquiry is one which is “likely to illicit information about a disability.” Such a question may be somewhat indirect, and may not necessarily be clothed in medical or scientific jargon.
For example, according to the EEOC, the question “how much alcohol do you drink?” is disability-related (it may illicit information indicating alcoholism), while merely asking “do you drink alcohol?” is not disability-related (many people, with or without alcoholism, drink alcoholic beverages).
A medical examination is one that seeks information about physical or mental impairments or health. There are several factors that indicate a procedure or test is medical:
- It is administered by a health care professional
- The results are interpreted by a health care professional
- It is designed to reveal physical or mental health issues or impairments
- It is invasive (for example, it requires the drawing of blood, urine or breath
- It measures physiological responses to performing tasks (for example, it measures blood pressure or heart rate following an activity)
- It is normally given in a medical setting or health care facility
- Medical equipment is used
Tests which are not considered medical include tests designed to measure traits such as honesty, including polygraph tests, and agility or fitness tests. For example, an employer can require a test that simulates job tasks such as lifting or running. However, if heart rate or blood pressure is measured following the test, it becomes a medical exam and is subject to the relevant limitations, depending on the stage of employment.
An employer is also allowed to conduct testing for illegally used drugs at any time, even though such tests are typically “medical” in the sense that they are invasive and are conducted and interpreted by medically trained personnel. Individuals who currently illegally use drugs are not protected by the ADA, so employers are free to test for such use. Employers must be cautious, however, about obtaining or using information about legal drug use that may be revealed through such tests. Some prescription medications, even when taken appropriately, will produce “positive” drug test results that need to be “factored out.”
Medical information that is obtained must be closely guarded. It must be kept separately from general personnel files and records. It may only be shared in very specific and limited circumstances, including:
- Supervisors and managers may be informed about specific work restrictions or accommodations that need to be implemented for an employee;
- First aid and safety personnel may be informed if an employee might require emergency assistance or treatment; and
- Government officials investigating ADA compliance may require such information.
Follow Up and Follow Through
Employers should establish policies related to medical inquiries and exams, making sure that managers and supervisors, as well as any medical staff (including contractors such as health care providers or laboratories that conduct examinations or drug tests on behalf of the employer) are well trained on ADA provisions.
Management and human resources staff also need to understand how to handle medical information so that confidentiality is maintained.
The Mid-Atlantic ADA Center and the ADA National Network offer a variety of training programs for employers, ranging from webinars to customized, on-site sessions. Additionally, our Information Specialists are available to answer questions via our toll-free telephone line (1-800-949-4232).
*See the complaint filed by the Department of Justice against Baltimore County, Maryland and the subsequent consent decree for an example of a case that involved medical examinations and inquiries.
This is a publication of the Mid-Atlantic ADA Center funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133A060085). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Department of Education.
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