Enforcement Guidance: Application Of The ADA To Contingent Workers Placed By Temporary Agencies And Other Staffing Firms

AMERICANS WITH DISABILITIES GUIDELINES

TABLE OF CONTENTS

ENFORCEMENT GUIDANCE:
DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)

INTRODUCTION

GENERAL PRINCIPLES

Scope and Manner of Disability-Related Inquiries and Medical Examinations

Periodic Testing and Monitoring

OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES

QUESTIONS AND ANSWERS:
ENFORCEMENT GUIDANCE ON DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)

INTRODUCTION

IN GENERAL

SCOPE AND MANNER OF INQUIRIES AND EXAMINATIONS

PERIODIC MEDICAL EXAMINATIONS AND TESTING

Enforcement Guidance: Application Of The ADA To Contingent Workers Placed By Temporary Agencies And Other Staffing Firms

Introduction

In General

Offer of Employment

Reasonable Accommodation And Undue Hardship

Qualification Standards, Employment Tests, And Other Selection Criteria

Questions and Answers: Enforcement Guidance: Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms

Introduction

Reasonable Accommodation and Undue Hardship

Qualification Standards, Employment Tests, and Other Selection Criteria

DISCLAMER

ENFORCEMENT GUIENFORDANCE:
DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)

INTRODUCTION

Title I of the Americans with Disabilities Act of 1990 (the "ADA") 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 pre-employment 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. 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.

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 non-visible 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.

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. 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. 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.

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), 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.

Disability-Related Inquiries and Medical Examinations of Employees

The ADA states, in relevant part:

A covered entity 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.

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, 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. 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. 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.

1. What is a "disability-related inquiry"?

In its guidance on Pre-employment Questions and Medical Examinations, the Commission explained in detail what is and is not a disability-related inquiry. A "disability-related inquiry" is a question (or series of questions) that is likely to elicit information about a disability. The same standards for determining whether a question is disability-related in the pre- and post-offer stages apply to the employment stage.

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;
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;