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Update: EEOC's New Guidance on Medical Inquiries to and Exams of
Employees and Applicants
- How will the EEOC's action affect your right to get return to work
releases from employees coming off leave?
- Can you ask an employee for a psychiatric exam if they seem to be
"losing it"?
- Do you have the right to test for alcohol use?
What's Permitted? What's Prohibited?
This newsletter tackles these questions, with an assist from the EEOC's
recently issued Final Enforcement Guidance on Disability-Related Inquiries
and Medical Examinations of Employees under the Americans with
Disabilities Act (ADA).
The EEOC allows employers to inquire regarding an employee's medical
condition, and even to require a medical examination IF the
inquiry/exam is job related and "consistent with business
necessity." Otherwise, employers are prohibited from making
"disability related inquiries" (any questions which are likely
to elicit information about a disability).
Usually
Prohibited
Unless Job-Related / Consistent with Business Necessity |
Specifically
Permitted |
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Asking if employee applicant has/had a disability or how he/she
became disabled or about the severity of any disability.
› Asking for genetic
information.
› Asking about prior
worker's compensation history.
› Asking the employee
whether he/she is taking any prescription drugs or medications
(unless in a safety sensitive position and the inquiry is limited
to reporting prescription use that might adversely affect safety).
› Vision tests
conducted and analyzed by an ophthalmologist or optometrist.
› Blood, urine or
breath analysis for alcohol use, disease detection or genetic
markers.
› Nerve conduction
tests (EMG's).
› Range of motion and
pulmonary function tests.
› Diagnostic
procedures, including x-rays, cat scans and MRI's.
› General
psychological tests.
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› Asking generally
about an employee's well-being, including asking an employee
who looks tired or ill if he feels okay.
› Requiring a doctor's
note to substantiate the need for sick leave or return to work
after extended leave (limited to fitness for duty assessment).
› Asking an employee
about non-disability impairment (e.g., How did you break your
leg?).
› Asking an employee
whether he/she can perform job functions.
› Asking an employee
whether he/she has been drinking or asking about and testing for
current use of illegal drugs.
› Asking a pregnant
employee when her baby is due.
› Tests required by
federal and state laws (e.g., DOT drug testing).
› Physical agility
tests to measure an employee's ability to perform actual or
simulated job tasks (physical fitness).
› Tests to evaluate
ability to read labels, or distinguish objects, if those
requirements are part of job duties.
› Voluntary wellness
program testing (e.g., blood pressure and cholesterol).
› Psychological tests
to measure specific personality traits.
› Self-identification
as part of disability affirmative action program.
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When is Inquiry or Testing Permitted?
Whether an inquiry or test is permitted must be based on an individual
assessment of the employee, his/her condition, and performance.
A disability-related inquiry or medical examination is "job
related and consistent with medical necessity" when the employer has
a reasonable belief based on objective evidence that:
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Essential Job Function Impaired: An employee's
ability to perform essential job functions is being impaired by a
medical condition.
This standard is met when the employer knows about a particular
employee's medical condition, has observed performance problems, and
reasonably can attribute the performance problems to the medical
condition. The employer may also rely on reliable information
from a credible third party to substantiate any problems. Thus, if an
employer knows that an employee, Sam Small, has had a past problem with
alcoholism, observes current performance problems such as arriving late
to work, failing to perform usual tasks, and his manager reports
smelling alcohol on Sam's Breath, then the employer can reasonably
attribute the problems to the medical condition and request an alcohol
test.
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Dealing with Direct Threats: An employee will pose
a direct threat to himself or others due to a medical condition.
Because 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, the
assessment must be based on reasonable medical judgments that rely on
current medical knowledge and the best available objective evidence. To
meet this burden, the employer will likely 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 appropriate medical
information on which the employer can rely. The medical examination must
be limited to determining whether the employee can safely perform
his/her job without posing a direct threat. The employer must pay all
costs associated with this examination.
If there is conflicting information regarding whether the employee
poses a direct threat, the employer must be particularly careful in
determining the proper course of action, and should likely consult with
its legal counsel to map out a course of action, evaluate the
conflicting information to determine the area of expertise of each
medical professional who has provided information, the kind of
information that each person providing documentation has about the job
and work environment, whether the opinion is based on speculation or on
current, objectively verifiable information about the risks associated
with the employee's medical condition, and whether the medical opinion
is contradicted by information known or observed by the employer (e.g.,
if the employee actually brings a gun to work, the physician's statement
that the employee poses no threat can be discounted).
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Reasonable Accommodation Requests: Follow-up on
requests for reasonable accommodation when either the existence of a
disability or a need for accommodation is not obvious.
If an employee requests a reasonable accommodation, but does not
provide sufficient documentation from her treating physician or other
health care professional to substantiate the need for accommodation, the
EEOC directs the employer to first tell the employee why the
documentation is insufficient and allow the employee an opportunity to
provide the missing information in a timely manner. However, the law
does not prohibit an employer from requiring the employee to see a
physician of the employer's choosing. Moreover, if the employee is also
using FMLA leave, a "second opinion" can be easily secured.
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