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Five years after it issued an enforcement guidance on pre-employment disability-related questions and medical exams, the agency has come out with a new policy guidance explaining the EEOC's position on when an employer may ask disability-related questions or require medical exams of current employees.
Previous guidances have been limited to the rights of qualified individuals with disabilities; this latest guidance applies to all employees of any employer covered by the ADA. The agency says the new guidelines reflect the intent of Congress to prevent employers from asking questions and conducting medical examinations that serve no legitimate purpose. They provide examples of situations when such inquiries and exams are "job-related and consistent with business necessity," as required by the ADA, and when such questions are illegal.
Before an employer may make an inquiry or require an exam, the employer must have a reasonable belief either that an employee's ability to perform the essential functions of the job is or will be impaired by a medical condition, or that the employee will pose a direct threat due to a medical condition. Either of these beliefs must be based on objective evidence "obtained or reasonably available to the employer" before making the inquiry or requiring an exam. Interestingly, any reference in the guidance to "direct threat" does not include the usual EEOC language of "direct threat to the individual or others," but only the words "direct threat." This may be a response to a recent decision by the U.S. Court of Appeals for the Ninth Circuit, which ruled that it was never the intent of the ADA to allow an employer to determine when a job poses a direct threat to the qualified individual. The employer's direct threat defense, the court said, was limited to the argument that the individual's disability could pose a direct threat to others.
Prohibited and permitted inquiries
Any question or series of questions that is likely to elicit information about a disability is prohibited under the ADA. This does not include asking an employee:
- questions about the employee's general well-being;
- whether he or she can perform job functions;
- whether the employee has been drinking;
- about his or her current illegal use of drugs;
- to provide the name and telephone number of a person to contact in case of a medical emergency.
Prohibited and permitted examinations
Tests that are considered medical examinations and are therefore prohibited under the ADA include:
- vision tests conducted by an ophthalmologist or optometrist;
- tests to check for alcohol use (unless the employer has a reasonable suspicion the employee is under the influence of alcohol while at work);
- testing to detect disease or genetic markers;
- blood pressure and cholesterol screening;
- range-of-motion tests;
- pulmonary function tests;
- psychological tests designed to identify a mental impairment; and
- diagnostic tests such as x-rays.
Tests that are generally not considered medical examinations include:
- tests to determine the current use of illegal drugs;
- physical agility tests and physical fitness tests, as long as these tests are limited to an employee's ability to perform actual or simulated job tasks;
- psychological tests that measure personality traits such as honesty, preferences and habits; and
- polygraph examinations as long as disability-related inquiries are not included among the questions.
Because the EEOC regards an employee applying for a new position with the same employer as an applicant, the employer is prohibited from asking disability-related questions or requiring a medical exam until after a conditional offer of the new position is made to the employee. However, it is quite possible the employer may already have medical information about the employee in connection with his or her current position. Should that information include a request for reasonable accommodation in the current position, the guidance allows the employer to ask what type of accommodation would be needed in the new job before extending an offer for that job.
An employee is not an applicant when he or she is entitled to a new position through seniority or merit. In those cases, an employer may make disability-related inquiries or require a medical examination if it is job-related and consistent with business necessity.
Job-related/business necessity
The EEOC considers disability-related inquiries or medical examinations to be "job related and consistent with business necessity" when objective evidence causes an employer to have a reasonable belief that (1) an employee's ability to perform essential job functions is or will be impaired by a medical condition, or (2) that an employee's medical condition will pose a direct threat.
Situations that meet those criteria include:
- asking an employee for documentation she he or she requests a reasonable accommodation;
- when reliable information is learned from a credible third party;
- certain periodic medical exams and other monitoring under specific circumstances;
- the employer's own observations of symptoms indicating an employee may have a medical condition that will affect his or her ability to perform the job or that could pose a direct threat.
Scope of inquiries and exams
Employers may require documentation to substantiate an ADA disability and the need for reasonable accommodation but cannot ask for unrelated information. Employers may also require an employee to go to a health care professional of the employer's choice when the employee requests a reasonable accommodation or when the employer reasonably believes the employee will pose a direct threat. But the information obtained by the employer must be limited to those issues, i.e., the employer cannot request an employee's complete medical records.
The full text of the guidance is available on the EEOC's web site at http://www.eeoc.gov.
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