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Questions and Answers:
Enforcement Guidance on
Disability-Related Inquiries and
Medical Examinations of Employees
Under the Americans with Disabilities Act (ADA)
The U.S. Equal Employment Opportunity
Commission
QUESTIONS AND ANSWERS:
ENFORCEMENT GUIDANCE ON DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES
UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)
INTRODUCTION
What does this Guidance address?
- The Guidance explains the ADA's
rules concerning when employers may and may not obtain medical information about their
employees.
Why did the EEOC issue this Guidance?
- In October 1995, the EEOC issued enforcement guidance
explaining the ADA's rules concerning when an employer may and may not make
disability-related inquiries and require medical examinations of applicants.
Since that time, we have had many inquiries from EEOC investigators and attorneys in the
field, employers, and employees about how the law applies with respect to people
who are already working. This Guidance is intended to answer some of the most
frequently-asked questions we have received.
To whom does the Guidance apply?
- The Guidance applies to private and to state and local
government employers with fifteen or more employees. Federal sector employers are also
covered by the Guidance, as the result of the 1992 amendments to the Rehabilitation Act.
- The ADA's requirements regarding disability-related
inquiries and medical examinations apply to all of the employees of a covered
employer, whether or not they have disabilities.
IN GENERAL
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.)
- No. The ADA limits an employer's ability to make
disability-related inquiries or require medical examinations at three stages: pre-offer,
post-offer, and during employment. The rules concerning
disability-related inquiries and medical examinations are different at each stage.
- 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.
- 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.
- 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)
- A "disability-related inquiry" is a question that
is likely to elicit information about a disability, such as asking employees about:
whether they have or ever had a disability; the kinds of prescription medications they are
taking; and, the results of any genetic tests they have had.
- Disability-related inquires also include asking an
employee's co-worker, family member, or doctor about the employee's disability.
- Questions that are not likely to elicit information
about a disability are always permitted, and they include asking employees about their
general well-being; whether they can perform job functions; and about their current
illegal use of drugs.
What is a "medical examination"?
(Question 2)
- A "medical examination" is a procedure or test
usually given by a health care professional or in a medical setting that seeks information
about an individual's physical or mental impairments or health. Medical examinations
include vision tests; blood, urine, and breath analyses; blood pressure screening and
cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.
Are there any procedures or tests employers may
require that would not be considered medical examinations? (Question 2)
- Yes. There are a number of procedures and tests that
employers may require that are not considered medical examinations, including: blood and
urine tests to determine the current illegal use of drugs; physical agility and physical
fitness tests; and polygraph examinations.
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)
- Generally, an employer only may seek information about an
employee's medical condition when it is job related and consistent with business
necessity. This means that the employer must have a reasonable belief based on
objective evidence that:
- an employee will be unable to perform the essential
functions his or her job because of a medical condition; or,
- 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:
- are required to do so by another federal law or
regulation (e.g., DOT medical certification requirements for interstate truck
drivers); (Question 21)
- offer voluntary programs aimed at
identifying and treating common health problems, such as high blood pressure and
cholesterol; (Question 22)
- 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)
- First, the employer should determine whether the information
learned is reliable. The employer should consider how well the person
providing the information knows the individual, the seriousness of the medical condition,
and how the person learned the information.
- The employer should then determine whether the information
gives rise to a reasonable belief that the employee in question will be unable to perform
the essential functions of his or her job because of the medical condition or will pose a
direct threat because of the condition.
- If the information does give rise to such a reasonable
belief, then the employer may make disability-related inquiries or require a medical
examination as permitted by the Guidance.
May an employer ask all employees what
prescription medications they are taking? (Question 8)
- Generally, no. In limited circumstances, however, employers
may be able to ask employees in positions affecting public safety about
their use of medications that may affect their ability to perform essential functions and thereby
result in a direct threat.
- For example, an airline could require pilots to report when
they are taking medications that may affect their ability to fly. A fire department,
however, could not require employees in administrative positions to report their use of
medication because it is unlikely that these employees would pose a direct threat as a
result of an inability, or impaired ability, to do their jobs.
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)
- The employer may discipline the employee for his or her
performance problems just as it would any other employee having similar performance
problems.
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)
- In some instances, yes. If the employer has explained what
type of documentation is needed, and the employee fails to provide it or provides
insufficient documentation, the employer may require the employee to see a health care
professional of the employer's choice.
- Even where an employee initially provides insufficient
documentation, however, the employer should consider asking the employee's health care
provider for additional information before requiring an examination by the employer's
health care professional. This is because an employee's health care provider frequently is
in the best position to provide information about the employee's limitations.
May an employer have an employee who it
reasonably believes will pose a direct threat examined by its own health care provider?
(Question 12)
- Yes. This is because the employer is responsible for
assessing whether an employee poses a direct threat based on a reasonable medical judgment
that relies on the most current medical knowledge and/or best objective evidence.
- The health care professional the employer chooses should
have expertise in the employee's specific medical condition and be able to provide medical
information that allows the employer to determine the effects of the condition on the
employee's ability to perform his or her job.
- If the employer's health care professional believes that the
employee poses a direct threat, but the employee's own doctor disagrees, the employer
should evaluate the conflicting medical information by considering, for example, the area
of expertise of each medical professional; the kind of information each provided; and,
whether the information provided is consistent with the employer's own observations of or
knowledge about the employee.
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)
- Yes. An employer is entitled to know why an employee is
requesting sick leave. An employer, therefore, may ask an employee to provide a doctor's
note or other explanation, as long as it has a policy or practice of requiring all
employees to do so.
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)
- Yes, if an employer has a reasonable belief that an
employee's present ability to perform essential functions will be
impaired by a medical condition or that he or she will pose a direct threat because of a
medical condition.
- Any inquiries or examination, however, must be limited in
scope to what is needed to determine whether the employee is able to work.
PERIODIC MEDICAL EXAMINATIONS AND TESTING
May employers require employees to have
periodic medical examinations? (Question 18)
- No, with very limited exceptions for
employees who work in positions affecting public safety, such as police officers,
firefighters, or airline pilots. Even in these limited situations, the examinations must
address specific job-related concerns. For example, a police department could periodically
conduct vision tests or electrocardiograms because of concerns about conditions that could
affect the ability to perform essential job functions and thereby result in a direct
threat. A police department could not, however, periodically test its officers to
determine whether they are HIV-positive, because a diagnosis of this condition alone would
not result in a direct threat.
May employers subject employees to periodic
alcohol testing? (Question 19)
- Generally, no. Employers, however, may subject employees who
have been in alcohol rehabilitation programs to periodic alcohol testing
where the employer has a reasonable belief that the employee will pose a direct threat in
absence of such testing.
- In determining whether to subject such an employee to
periodic alcohol testing, 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 do his or her job, and the reason(s) why the employer believes that the
employee will pose a direct threat.
- Of course, an employer may maintain and enforce rules
prohibiting employees from being under the influence of alcohol in the workplace and may
conduct alcohol testing for this purpose if it has a reasonable belief that an employee
has been drinking during work hours.
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