• Latest EEOC Enforcement Guidance: Disability-Related Inquiries & Examinations Under the ADA
  • August 21, 2003
  • Law Firm: McNees Wallace & Nurick LLC - Harrisburg Office
  • On July 27, the Equal Employment Opportunity Commission ("EEOC") issued Enforcement Guidance on disability-related inquiries and medical examinations of employees under the Americans With Disabilities Act. The agency has been quite active in recent years in issuing Guidance on various discrimination issues. As we have pointed out in previous Employers' Alerts, EEOC Enforcement Guidance does not have the legal effect of a formal regulation, but the Guidance does provide insight into the EEOC's position on many important issues. This is especially significant, given that EEOC investigators will look to the Guidance when conducting an investigation of an EEOC complaint against an employer.

    Under the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three distinct stages: pre-offer, post-offer and employment. At the pre-offer stage, the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job. After an applicant is given a conditional job offer (conditioned only on the disability-related inquiry or exam), but before the applicant starts works, an employer may make all manner of inquiries and/or exams, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. However, an individual who has been given a conditional offer of employment must be hired unless the results of the inquiry or exam show that the employee is not able to perform the essential functions of the job or poses a direct threat to the health or safety of others. 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 EEOC Enforcement Guidance focuses only upon those inquiries and examinations conducted during the employment relationship.

    The most important aspect of the Guidance is its discussion of circumstances under which an employer may conduct disability-related inquiries and examinations of current employees. The answer to this inquiry depends upon whether the employer can show that the exam or inquiry is 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 a reasonable accommodation when the disability or a need for accommodation is not known or obvious also may be job-related and consistent with business necessity.

    (Enforcement Guidance, Question 5.)

    The Guidance discusses at length the view that an employer must possess objective evidence to support the basis for conducting the disability-related inquiry or medical examination. The employer may not rely upon general assumptions or stereotypes. In this regard, the Guidance provides an interesting example of an HIV positive employee in the produce department of a large grocery store who is frequently required to work with sharp knives. Under such circumstances, the EEOC takes the position that the employer may not conduct any medical inquiry or examination of the employee to determine whether the employee poses a direct threat to the health or safety of co-workers, since it is established that universal precautions (wearing gloves) essentially eliminate the risk of transmission of the virus among employees, even where sharp knives are used.

    (Enforcement Guidance, Question 5, Example D.)

    The Enforcement Guidance states that an employer may require "sufficient documentation" from an employee who has requested a reasonable accommodation. However, the EEOC takes a somewhat restrictive view of the extent to which an employee may be required to verify the existence of a disability which requires an accommodation. Specifically, the EEOC defines "sufficient documentation" as follows:

    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.

    (Enforcement Guidance, Question 10.)

    According to the Guidance, once an employee provides sufficient documentation, an employer may not seek additional information, or require that an employee submit to a medical examination in order to substantiate the need for a reasonable accommodation. The Guidance does, however, provide employers with broad authority to require that an employee submit to a medical examination where the employer has valid reason to believe that the employee may pose a direct threat to the health or safety of others in the workplace.

    The Guidance also clarifies that employers have the right to request an employee to provide a doctor's note or other explanation to substantiate the use of sick leave or any other absence from work.

    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.

    (Enforcement Guidance, Question 15.)

    Thus, it is important that employers establish a general policy or practice of requiring such information of all employees under certain circumstances, as in the absence of such a policy employees may claim that they are being singled out for adverse treatment based upon a disability.

    An area of potential concern for employers involves inquiries related to prescription drug use. The Guidance points out that it is unlawful for an employer to require an employee to disclose his/her use of prescription medications. According to the Guidance, the only exception to this general rule is where the employee works in a position affecting public safety. Accordingly, employers must review their policies with respect to disclosure of prescription medication, especially as it relates to drug or alcohol testing, to ensure that a potential ADA violation is avoided.

    The Guidance also discusses many other issues relating to the scope and manner of disability-related inquiries and examinations of current employees. We suggest that all of our clients take this opportunity to review their policies and practices with respect to medical examinations and inquiries. The EEOC Guidance is available on the Internet at www.eeoc.gov/docs/guidance-inquiries.html.