AMERICANS WITH DISABILITIES GUIDELINES
TABLE OF CONTENTS
ENFORCEMENT
GUIDANCE:
DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE
AMERICANS WITH DISABILITIES ACT (
Disability-Related Inquiries and Medical
Examinations of Employees
JOB-RELATED AND CONSISTENT WITH BUSINESS
NECESSITY
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
QUESTIONS AND
ANSWERS:
ENFORCEMENT GUIDANCE ON DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS
OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (
JOB RELATED AND CONSISTENT WITH BUSINESS
NECESSITY
SCOPE AND MANNER OF INQUIRIES AND
EXAMINATIONS
DISABILITY-RELATED INQUIRIES AND MEDICAL
EXAMINATIONS RELATED TO LEAVE
PERIODIC MEDICAL EXAMINATIONS AND TESTING
Enforcement
Guidance: Application Of The
Disability-Related Inquiries and Medical Examinations of Employees
Reasonable Accommodation And Undue Hardship
Qualification Standards, Employment Tests, And Other Selection
Criteria
Questions and Answers: Enforcement Guidance:
Application of the
Disability-Related Inquiries and Medical
Examinations
Reasonable Accommodation and Undue
Hardship
Qualification Standards, Employment
Tests, and Other Selection Criteria
ENFORCEMENT
GUIENFORDANCE:
DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE
AMERICANS WITH DISABILITIES ACT (
Title I of the Americans with Disabilities Act of 1990
(the "
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.
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
Under the
The
Disability-Related
Inquiries and Medical Examinations of Employees
The
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
Only disability-related inquiries and medical
examinations are subject to the
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:
Questions that are not likely to elicit information about a disability are not disability-related
inquiries and, therefore, are not prohibited under the
Questions that are permitted include the following:
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. The guidance on Pre-employment 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.
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:
There are a number of procedures and tests employers
may require that generally are not considered medical examinations,
including:
3. Who is an "employee"?
The
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. 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. 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.
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
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.
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 due to a medical condition." 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.
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, 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 (i.e., 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.
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
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.
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.
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. 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.
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. 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.
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
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.
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. 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. 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.
Documentation is insufficient if it does not specify the existence of an
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
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. 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. 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.
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. 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.
Disability-Related Inquiries and
Medical Examinations Relating to Leave
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. 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 examination when 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.
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.
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
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. 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. 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.
OTHER
ACCEPTABLE DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES
20. May an Employee Assistance Program (EAP) 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.
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. 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. Other
federal laws that require medical examinations or medical inquiries of
employees without violating the
22. May an employer make disability-related inquiries or
conduct medical examinations that are part of its voluntary wellness program?
Yes. The
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:
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.
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.
__________________________________
QUESTIONS AND ANSWERS:
ENFORCEMENT GUIDANCE ON DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS
OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (
INTRODUCTION
What does this Guidance address?
Why did the EEOC issue this Guidance?
To whom does the Guidance apply?
Are the rules about when an employer may make
disability-related inquiries and require medical examinations the same for
employees and applicants? (Introduction) (For more information about this and other issues
discussed in these Questions and Answers, please consult the referenced question
numbers from the Guidance.)
o
At the first stage (prior
to an offer of employment), an employer may not ask any disability-related
questions or require any medical examinations, even if they are related to the
job.
o
At the second stage (after
an applicant is given a conditional job offer, but before he or she starts
work), an 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.
o
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.
What is a "disability-related inquiry"?
(Question 1)
What is a "medical examination"? (Question 2)
Are there any procedures or tests employers may require
that would not be considered medical examinations? (Question 2)
JOB RELATED AND CONSISTENT WITH
BUSINESS NECESSITY
When may an employer ask an employee a disability-related
question or require an employee to submit to a medical examination? (Question
5)
o
an employee will be unable
to perform the essential functions his or her job because of a medical
condition; or,
o
the employee will pose a
direct threat because of a medical condition.
§
Employers also may obtain
medical information about an employee when the employee has requested a reasonable
accommodation and his or her disability or need for accommodation is not
obvious.
§
In addition, employers can
obtain medical information about employees when they:
o
are required to do so by
another federal law or regulation (e.g., DOT medical certification
requirements for interstate truck drivers); (Question 21)
o
offer voluntary
programs aimed at identifying and treating common health problems, such as high
blood pressure and cholesterol; (Question 22)
o
are undertaking affirmative
action because of a federal, state, or local law that requires affirmative
action for individuals with disabilities or voluntarily using the information
they obtain to benefit individuals with disabilities. (Question 23)
What should an employer do if it learns about an
employee's medical condition from someone else? (Question 6)
May an employer ask all employees what prescription
medications they are taking? (Question 8)
What may an employer do if it believes that an employee
is having performance problems because of a medical condition, but the employee
won't answer any questions or go to the doctor? (Question 9)
SCOPE AND MANNER OF INQUIRIES
AND EXAMINATIONS
May an employer have an employee who is requesting a
reasonable accommodation examined by its own health care provider? (Question
11)
May an employer have an employee who it reasonably
believes will pose a direct threat examined by its own health care provider?
(Question 12)
DISABILITY-RELATED INQUIRIES AND
MEDICAL EXAMINATIONS RELATED TO LEAVE
May an employer request that an employee provide a
doctor's note or other explanation when the employee has used sick leave?
(Question 15)
May an employer ask disability-related questions or
require a medical examination when an employee who has been on leave for a
medical condition wants to return to work? (Question 17)
PERIODIC MEDICAL EXAMINATIONS
AND TESTING
May employers require employees to have periodic medical
examinations? (Question 18)
May employers subject employees to periodic alcohol
testing? (Question 19)
__________________________________
Enforcement
Guidance: Application Of The
Staffing firms provide "opportunities to build a
work history, experience different types of jobs, and increase...employment
marketability and earning potential through enhancement of work skills." A
recent study suggests that employment through the staffing firm industry can
provide "[a] critical means for people with disabilities to move from
unemployment to competitive permanent employment." Because less than
one-third of Americans with severe disabilities are employed, the opportunity
to enter the workforce and to move to stable, permanent employment through
staffing firms should be fully encouraged and facilitated. There is still
uncertainty, however, about how some provisions of Title I of the Americans
with Disabilities Act of 1990 (
This guidance addresses unique
Basic staffing firm work arrangements involving temporary
employment agencies, contract firms, facilities staffing firms, lease-back
firms, and welfare-to-work programs are described in the Contingent Workers
Guidance. The term "staffing firm" is used in this document to
describe generically all of these types of work arrangements, although more
specific terms are used where necessary for clarity.
The Contingent Workers Guidance discusses several bases
on which a staffing firm, its client, or both may be liable for violations of
the federal employment discrimination laws. These bases of liability may be
summarized as follows:
·
A staffing firm or its client that qualifies as an
employer of a staffing firm worker may be liable for:
§
its own discrimination against the
worker; or
§
discrimination by the other entity if
it either:
·
participates in the
discrimination; or
·
knew or should have known of
the discrimination and failed to take corrective action within its
control.
·
A staffing firm that does not qualify as a worker's
employer may still be liable for discrimination if it:
§
interferes with the worker's
§
qualifies as an employment agency, in
that it refers potential employees to employers or provides employers with the names
of potential employees.
·
Finally, a client that does not qualify as a staffing
firm worker's employer still may be liable if it interferes with the
worker's
·
Disability-Related Inquiries And Medical Examinations
Under the
In general, a covered entity may not ask questions on an
application or in an interview about whether an applicant will need reasonable
accommodation to perform the functions of the job. This is because these
questions are likely to elicit information about whether an applicant has a
disability. Under certain circumstances, however, a covered entity may ask an
applicant whether she or he needs a reasonable accommodation to perform the
functions of the job, and if so, what type. These questions are permitted
where:
·
the covered entity reasonably believes that the applicant
will need a reasonable accommodation because of an obvious disability;
·
the covered entity reasonably believes that the applicant
will need a reasonable accommodation because of a hidden disability that the
applicant has voluntarily disclosed; or
·
an applicant has voluntarily disclosed that s/he needs a
reasonable accommodation to perform the job.
A covered entity may ask disability-related questions or
require medical examinations after it has made an offer of employment
and before the applicant begins work duties, if it does so for all
entering employees in the same job category, regardless of disability.
Disability-related inquiries and medical examinations of
employees are permitted only if they are job-related and consistent with
business necessity or in other limited circumstances.
Since an employer has considerable latitude in asking
disability-related questions or requiring medical examinations after an offer
is made, it is critical to determine what constitutes a job offer in the
context of staffing firm arrangements.
No. None of the factors indicating a
relationship of employment between an individual and a staffing firm or
staffing firm's client exist when the individual is placed on the roster.
Typically, a staffing firm and an individual applying for a temporary work
assignment with the staffing firm do not intend to create an employer-employee
relationship at this stage. The parties merely agree that: (1) the staffing
firm will consider the individual for specific work assignments in
the future; and (2) the individual will consider accepting
assignments in the future depending on his or her availability and the
desirability of the assignment.
Additionally, no job functions or
duties are performed until after the staffing firm worker accepts an
offer of an assignment with a client. Performance of job functions is implicitly
included among the factors that show that a relationship is one of employment.
For example, the most critical factor--the staffing firm's and/or client's
control over when, where, and how the worker performs work duties--is
necessarily absent when no job functions are being performed.
Example
1: CP applies for work with Jobmart, a temporary employment
agency. A Jobmart associate interviews CP to find out about his skills,
education, experience, and the types of work assignments he would be willing to
accept. The associate informs CP that the agency will contact him when an
appropriate assignment becomes available. Jobmart has not made CP an offer of
employment, and therefore may not make disability-related inquiries or require
medical examinations.
Generally, the offer occurs when a
staffing firm worker is given an assignment with a particular client.
After a staffing firm offers an individual an actual work assignment with one
of its clients and the individual accepts the offer, the factors indicating an
employment relationship are present. Once an individual has been given an
assignment with a client, the staffing firm typically pays wages, withholds
taxes and social security, and provides benefits and workers' compensation
coverage to the individual, while the client typically controls when, where,
and how the individual performs work duties. Therefore, a staffing firm or
client violates the
Some staffing firms have contracts
with numerous clients to provide similar services on a long-term basis, such as
janitorial, security, landscaping, etc. Typically,
such firms place their own employees, including supervisors, at the clients'
work sites and assume full operational responsibility for providing ongoing
services. Under such circumstances, an offer of employment may occur prior to
the designation of a particular location where work is to be performed, as long
as the workers are guaranteed positions somewhere and specific assignments are
made soon after the offer.
Example
2: Clean Sweep is a contract firm that hires workers to
perform housekeeping duties at its clients' offices. Clean Sweep assumes full
operational responsibility for providing housekeeping services. Because of the
high turnover in housekeeping jobs, Clean Sweep knows that each week several
positions will become available at its clients' offices, but it often does not
know which clients will need workers until a day or two before the assignment
is supposed to begin. Clean Sweep tells CP to report to its office on Monday
morning at 8 a.m. to be given an assignment. Clean Sweep has made CP an offer
of employment.
After a staffing
firm offers an applicant an actual work assignment with a client and
before his or her duties begin, the staffing firm or client may ask any
disability-related questions or require any medical examinations it chooses, as
long as it does so for all individuals entering the same job category. Of course,
the offer of a work assignment may be conditioned on the results of post-offer
disability-related questions and medical examinations.
Example
3: After CP is interviewed for laboratory technician
positions, Tempsmart offers him an assignment with a federal agency's research
laboratory. The federal agency requires that all of its laboratory technicians
be tested for Hepatitis B and C before starting work. Since an offer of
employment has been made to CP, Tempsmart may, consistent with the
If, however, a qualified individual
is screened out because of a disability, the staffing firm or client must show
that the exclusionary criterion is "job-related and consistent with
business necessity," and that there was no reasonable accommodation that
would have enabled the individual to meet the criterion. In addition, if an
offer is withdrawn for reasons related to safety, the employer must show that
the individual poses a "direct threat." (For more information about a
staffing firm's or client's use of qualification standards, including the
results of medical examinations, that screen out individuals on the basis of
disability, see Question 11).
Yes. Because the ADA allows an
employer to obtain medical information only after an offer of employment (as
long as it does so for all entering employees in the same job category), where
an applicant is unable to provide requested medical information before an
assignment begins, the staffing firm or client may revoke the offer.
Example
4: Same facts as example 3. The laboratory technician
position that CP is offered is scheduled to begin in three days. If CP is
unable to provide the results of tests for Hepatitis B and C before then, the
offer may be revoked.
Where possible, staffing firms should
notify applicants ahead of time of medical information or examinations needed
for certain types of work assignments. This enables applicants to obtain in
advance the information needed for specific assignments that may need to be
filled on short notice.
Example
5: Same facts as example 3, except that Tempsmart notifies
CP at the interview that he will have to be tested for Hepatitis B and C before
he begins most laboratory technician assignments. A week later, at 3:00 P.M.,
when the federal agency requests a laboratory technician who can begin work the
next morning, Tempsmart offers the assignment to CP and reminds him that the
agency requires him to be tested for Hepatitis B and C. Because of Tempsmart's
advance notice, CP has already been tested by his own physician. The physician
faxes the results to Tempsmart in time for CP to start the next day.
Disability-Related
Inquiries and Medical Examinations of Employees
Yes, if the questions or examinations
are 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 due to a
medical condition." 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, as well as certain types of
periodic medical examinations and monitoring, also may be job-related and
consistent with business necessity. Additionally, such questions or
examinations of staffing firm workers while they are on a work assignment are
permitted if they are required by another Federal law or regulation.
The questions or examinations must
not exceed the scope of the specific medical condition and its effect on the
staffing firm worker's ability, with or without reasonable accommodation, to
perform essential job functions or to work without posing a direct threat.
Thus, for example, if a staffing firm worker asks for a reasonable
accommodation, and the disability and/or the need for accommodation is not
obvious, the staffing firm or its client may ask the worker for reasonable
documentation of his/her disability and functional limitations. Like any
medical information that an employer has about an applicant or employee,
information obtained as the result of lawful disability-related inquiries or
medical examinations of an employee must be kept confidential.
Reasonable Accommodation And Undue
Hardship
The
Typically, only the staffing firm
is an applicant's prospective employer during the application process because
it has not yet identified the client for which the applicant will work. In such
cases, only the staffing firm is obligated to provide a reasonable
accommodation for the application process.
Example
6: Workfast, a staffing firm, requires all applicants to
fill out a job application form. CP, who is substantially limited in her
ability to perform manual tasks because of muscular dystrophy, tells a Workfast
associate that she will need assistance in filling out the application form. Workfast
alone is obligated to provide the accommodation, absent undue hardship.
Where a client sends an applicant to
apply for work with it through a staffing firm, the client will usually qualify
as a prospective employer and, as such, will be obligated along with the
staffing firm to provide reasonable accommodation for the application process.
Example
7: EconoShop sends all applicants for temporary positions
to apply through Workfast, a staffing firm. EconoShop and Workfast are both
obligated to provide reasonable accommodations for the application process for
individuals with disabilities who are applicants for temporary positions with
EconoShop.
While a client is generally not
required to provide reasonable accommodations for the application process, a client
that qualifies as a joint employer of staffing firm workers may still violate
the ADA if it continues to obtain workers through a staffing firm although it
knows or has reason to know that the firm does not provide reasonable
accommodation for the application process. This is because a client that
qualifies as a joint employer of staffing firm workers may be liable for a
staffing firm's discrimination if the client knows or has reason to know of the
discrimination and fails to take corrective action within its control.
Example
8: A federal agency hires graphic artists through Sleek
Design, a contract firm. Individuals with disabilities have complained to the
federal agency that Sleek Design has denied them reasonable accommodations
needed for the application process. Assuming that the federal agency qualifies
as the joint employer of staffing firm workers, it will violate the
Rehabilitation Act if it continues to obtain workers through Sleek Design.
Yes. Because each qualifies as an
employer of the staffing firm worker, each is obligated to provide a reasonable
accommodation needed on the job, absent undue hardship, if it has notice of the
need for the accommodation.
Example
9: Just-jobs, a temporary employment agency, sends CP, who
is deaf, to perform maintenance work for XYZ Corp. Both qualify as CP's
employer because Just-jobs hires CP and pays his wages, and XYZ supervises and
directs CP's work. CP informs Just-jobs that he will need a sign language
interpreter for a one-hour safety orientation program that XYZ Corp. requires
all employees to attend. Just-jobs lets XYZ know about CP's need for an
interpreter. Just-jobs and XYZ are both obligated to provide a reasonable
accommodation.
If it is not clear what accommodation
should be provided, both entities should engage in an informal interactive
process with the worker to clarify what s/he needs and to identify the
appropriate reasonable accommodation.
It may be mutually beneficial for the
staffing firm and its clients to specify in their contracts with one another
which entity will provide reasonable accommodations that are required on the
job or how the costs of accommodations will be shared. In this way, the
question of which entity will provide an accommodation can be anticipated and
resolved before a request is actually received, thereby eliminating
unnecessary delay in providing the accommodation. A staffing firm and its
clients may, through a contract, allocate responsibility for providing
reasonable accommodations in any way they choose. Any contractual arrangement
between a staffing firm and a client, however, does not alter their obligations
under the
Yes. Some temporary jobs become
available on short notice and last for only a brief period of time, during
which certain tasks must be completed. In such cases, a staffing firm or client
can establish undue hardship by showing that the work assignment had to be
filled on short notice and that the accommodation could not be provided quickly
enough to enable the staffing firm worker to timely begin or complete a
temporary work assignment.
Example
10: CP applies with All-temps for craft work. CP wears a
prosthesis in place of her missing left hand and is substantially limited in
her ability to perform manual tasks. In mid-October, All-temps offers CP a
temporary assignment, to begin the next day, as a wood cutter with Masters, a
manufacturer of small wooden toys. The assignment is to last for two weeks,
during which time Masters needs to complete production of a specified number of
toys in anticipation of holiday sales that will begin in November. CP tells
All-temps that she can perform the job with a reasonable accommodation -- an
inexpensive adaptive device that she has used to perform similar work for other
employers. Because neither All-temps nor Masters has the device, it must be
ordered, and it will take about a week to receive. The accommodation results in
an undue hardship for both All-temps and Masters.
Example
11: Same facts as example 10, except that the temporary work
assignment does not begin for three weeks. Because there is adequate time for
All-temps and Masters to provide the requested reasonable accommodation,
neither can show undue hardship.
The fact that a staffing firm and its
client have a very short period of time within which to provide an
accommodation will not alone constitute undue hardship. For example, it is often
possible to quickly provide qualified sign language interpreters for people who
are deaf. Resources are also available to provide readers for people who are
blind on short notice. Staffing firms and their clients should anticipate these
types of requests for reasonable accommodations and plan for how to provide
them expeditiously when a request is made. (See Question 7 above.)
Where a staffing firm and its client
are both obligated to provide a reasonable accommodation, the following
principles apply:
Example
12: CP applies for temporary work with All-temps and is
offered an assignment with XYZ Corp. Because of her disability, CP needs
adaptive equipment to use XYZ's machines. Neither All-temps nor XYZ Corp. has
sufficient resources of its own to purchase the equipment. Moreover, even when
All-temps' and XYZ Corp.'s assets are combined, acquisition of the equipment
would still result in significant expense. All-temps and XYZ Corp. can show
undue hardship.
Example
13: Same facts as example 12, except that the adaptive
equipment would not result in significant expense when the resources of the two
are combined. All-temps makes good faith efforts to get XYZ to contribute to
the cost of the equipment, but XYZ refuses. All-temps can show undue hardship.
XYZ Corp. cannot show undue hardship, even if its own resources would have been
insufficient to provide the accommodation, because it refused to contribute to
the accommodation's cost.
Example
14: X-Perts, a staffing firm, receives a request from its
client, Clutter Corp., a manufacturer of household appliances, to fill a
position editing its operating manuals. CP, a staffing firm worker who is
blind, needs adaptive equipment to perform the editing work on Clutter's
computers. The equipment would result in significant expense for either X-Perts
or Clutter Corp. alone, but together they can provide the full cost without
either one incurring undue hardship. Both X-Perts and Clutter Corp. must
contribute to the cost of the adaptive equipment.
If
X-Perts refuses to contribute to the cost of the accommodation, it has violated
the
If
Clutter Corp. refuses to contribute, it has violated the
Example
15: Same facts as example 14, except that Clutter Corp. can
provide the accommodation alone without undue hardship. Clutter Corp. asks
X-Perts, the staffing firm, to pay part of the cost of the accommodation, but
X-Perts refuses. Clutter Corp. must still provide the accommodation and does
not have an undue hardship defense.
Yes, if it can demonstrate that it
has made good faith, but unsuccessful, efforts to obtain the other's
cooperation in providing the reasonable accommodation.
Example
16: CP, who has Down Syndrome, has been sent by Goodstaff, a
staffing firm, to various clients to work as a kitchen helper performing simple
food preparation tasks. CP has no difficulty performing any of the tasks but,
because of his disability, he sometimes gets confused about the order in which
the tasks are to be done. As a reasonable accommodation, Goodstaff has provided
CP with posters picturing the tasks in the proper sequence that have enabled
him to perform his job functions correctly. Goodstaff provides CP with posters
for a kitchen helper position with Bon Banquet and offers to adjust them to Bon
Banquet's business practices, if necessary. Bon Banquet refuses to let CP use
the posters, however, and discharges him when he is unable to complete the
tasks in the right order. Goodstaff can show undue hardship, but should offer
CP the next available position for which CP is qualified. Goodstaff should also
inform Bon Banquet of its commitment to provide reasonable accommodation and
should not assign other workers to that work site until Bon Banquet agrees to
abide by its
Qualification Standards, Employment
Tests, And Other Selection Criteria
The ADA prohibits an employer from using a qualification
standard, employment test, or other selection criterion that screens out or
tends to screen out an individual with a disability or class of individuals with
disabilities, unless the standard, test, or criterion, as used by the covered
entity, is job-related for the position to which it is being applied and
consistent with business necessity. If the standard, test, or criterion is
shown to be job-related and consistent with business necessity, an employer
still must consider whether there is a reasonable accommodation that will
enable an otherwise qualified individual with a disability to satisfy it. With
regard to health and safety standards that screen out qualified individuals
because of disability, an employer must demonstrate that the requirement, as
applied to an individual, satisfies the "direct threat" standard.
Where the staffing firm and client
are joint employers of staffing firm workers, the following principles apply to
the use of qualification standards (including the use of the results of medical
examinations):
Example
17: XYZ Corp. hires temporary secretaries through Quality
Workers. XYZ tells Quality Workers that it requires all secretaries to have a
driver's license. CP applies for secretarial positions with Quality Workers and
is offered a position with XYZ. Quality Workers withdraws its offer when it
discovers that CP does not have a driver's license because of his disability.
XYZ Corp. requires its secretaries to have a driver's license so that they can
run errands for XYZ's executives, although it is not an essential function of
the job. Having a driver's license, therefore, is not job-related and
consistent with business necessity. XYZ and Quality Workers have violated the
Example
18: Same facts as Example 17, except that XYZ does not tell
Quality Workers about the driver's license requirement. CP, however, informs
Quality Workers that, when he showed up at XYZ's offices, XYZ refused to allow
him to perform the secretarial job because he did not have a driver's license.
CP further explains that he does not have a driver's license because of his
epilepsy. In this situation, Quality Workers must take corrective action within
its control in order to avoid liability under the
Many staffing firms administer their
own pre-employment tests to screen applicants or administer tests at the
direction of a client. Under the
In the context of contingent work
arrangements, therefore, the following principles apply where the staffing firm
and client qualify as joint employers of staffing firm workers with
disabilities:
Example
19: HourStaff, a staffing firm, gives a pre-employment test
to all applicants for temporary positions designed to measure their aptitude
for performing certain types of jobs. The test is made up of one hundred
multiple choice questions, and an applicant records his or her answers by
punching a small hole on the answer sheet next to his or her chosen response. A
machine then grades the test. CP, who has quadriplegia that substantially
limits his ability to perform manual tasks, requests, as a reasonable
accommodation, that he be allowed to give his answers orally to someone who can
record them to ensure that each hole is completely punched. Assuming that the
accommodation would not result in undue hardship, HourStaff will violate the
Example
20: Same facts as Example 19. CP and other individuals with
disabilities inform Items, Inc., which qualifies as a joint employer of
staffing firm workers, that HourStaff is refusing to provide reasonable
accommodations for the preemployment test. Because Items, Inc. knows or has
reason to know that
HourStaff
is violating the
Example
21: Stock-up, a grocery store, hires cashiers, stockers,
inventory clerks, and maintenance workers through Super-temps, a staffing firm.
Stock-up asks Super-temps to administer a math test to applicants for all of
Stock-up's positions and instructs Super-temps not to refer anyone for any of
the positions who has not passed the test. CP, who has mental retardation that
substantially limits his cognitive abilities, is unable to pass the test, even
with a reasonable accommodation. The test is not job-related and consistent
with business necessity for the stocker or maintenance worker positions.
Super-temps and Stock-up, therefore, will violate the
Questions and Answers: Enforcement Guidance: Application
of the
Why did the EEOC issue this Guidance?
What
o
the circumstances in which
staffing firms and their clients may ask disability-related questions or
require medical examinations of applicants and employees (Questions 1-5);
o
the extent to which a
staffing firm and its clients are required to provide reasonable accommodations
for staffing firm workers with disabilities (Questions 6-10); and
o
a staffing firm's and
client's liability for using qualification standards and preemployment tests
that discriminate on the basis of disability (Questions 11 & 12).
§
This guidance does not
include a detailed discussion of when an entity is an employer or when a
staffing firm and its client are joint employers. These concepts are fully
discussed in the Contingent Workers Guidance.
§
For more information about
the issues discussed in the Guidance, please consult the question numbers
referenced throughout this document.
To whom does this Guidance apply?
Disability-Related
Inquiries and Medical Examinations
The
What constitutes an offer of employment to a staffing
firm worker? (Questions 1 and 2)
What types of disability-related questions and medical
examinations are permitted after an offer of employment has been made to a
staffing firm worker? (Questions 3, 5)
What if a job becomes available on very short notice and
there isn't time for a staffing firm worker to provide needed medical
information? (Question 4)
Reasonable
Accommodation and Undue Hardship
Which entity - the staffing firm or its client - has to
provide a reasonable accommodation for the application process? (Question 6)
Where a staffing firm and its client are joint employers
of a staffing firm worker with a disability, which one has to provide
reasonable accommodations needed on the job? (Question 7)
What happens if a job becomes available on short notice
and there is no time for the staffing firm or client to provide a reasonable
accommodation? (Question 8)
What does the Guidance say about how staffing firms and
their clients should determine cost-related undue hardship? (Question 9)
What should a staffing firm or client do if providing the
accommodation is solely within the control of the other entity, e.g., where the
accommodation requires changes to the client's workplace? (Question 10)
Qualification
Standards, Employment Tests, and Other Selection Criteria
What does the Guidance say about the liability of
staffing firms and their clients for the use of discriminatory job standards?
(Question 11 )
How does the
Finally, if the staffing firm or its client knows that
the other entity is discriminating with respect to pre-employment testing, then
it must take corrective action within its control
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