ADA Guidelines Address Post-Employment Medical Inquiries

ADA Restrictions Protect Current Employees
What the Guidance Covers
New Questions Raised in Key Areas
When in Doubt, Consult Counsel

The ADA doesn’t just protect against disability discrimination—it also tells employers what they can ask about an employee’s medical condition. The EEOC guidelines offer some insight into the ADA’s restrictions on these inquiries, while raising other questions.

The Equal Employment Opportunity Commission (EEOC) has issued a Guidance addressing post-employment medical inquiries. According to the agency, the Guidance is intended to answer the most frequently asked questions that the EEOC has received regarding when employers may obtain medical information from current employees. However, the Guidance also raises additional questions that may confuse employers trying to follow it.

The ADA prohibits employers with 15 or more employees from discriminating against people with disabilities. The ADA also generally prohibits covered employers from asking applicants or current employees any medical questions that might reveal the existence, nature, or severity of a disability. (The EEOC addressed the issue of preemployment medical inquiries and examinations in a guidance.) The statute contains an exception for current employees: you may require an employee to answer medical inquiries or take a medical examination if you can show that the inquiries or examination are "job-related and consistent with business necessity." What that phrase means has been the subject of debate, since neither the ADA nor the regulations define it. The EEOC Guidance attempts to explain what circumstances will meet the criteria.

The Guidance answers 23 questions addressing employee medical inquiries and examinations. In particular, it discusses inquiries and exams that are considered job-related and consistent with business necessity, documentation and medical certification that can be required, inquiries and examinations relating to leaves of absence, and periodic testing and monitoring.

The Guidance identifies several circumstances when a medical inquiry or examination may meet the job-related/business necessity standard, including:

1. When you reasonably believe that an employee’s medical condition will impair his ability to perform the essential job functions or will cause the employee to pose a direct threat;

2. When you need additional information to help evaluate an employee’s request for accommodation and the disability is unknown or the need for accommodation is not obvious;

3. When you know about a particular employee’s medical condition and can attribute performance problems to the condition; or

4. When you are given information by a credible third party that an employee has a medical condition, or when you observe symptoms indicating an employee may have a medical condition, that will impair his ability to perform the essential job duties or will pose a direct threat.

The Guidance also explains the type of medical documentation you may require to substantiate a disability and the need for accommodation. Specifically, 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. In addition, the Guidance confirms that you may conduct periodic alcohol testing for employees who have been in alcohol rehabilitation as part of a last-chance agreement.

While the Guidance provides helpful explanation, it also raises a few questions regarding prescription drug use and return-to-work certifications. The Guidance indicates that you can ask employees in "public safety" positions to disclose when they are using prescription drugs only if the use would affect or impair their ability to perform the job. You also must be able to show that the employee’s inability or impaired ability will result in a direct threat. The Guidance does not define the term "public safety," but gives examples involving armed police officers and airline pilots. It leaves open the question whether employers may ask about prescription drugs for other safety risks that do not involve the public, such as when employees who operate machinery may endanger coworkers or themselves by taking certain prescription drugs while working. In addition, it seems to preclude questions about prescription drug use that affects productivity.

The Guidance also limits when you may require medical certification of an employee’s ability to return to work after sick leave or leave for a medical condition not covered by the Family and Medical Leave Act (FMLA). (In a footnote, the Guidance specifically states that all of its provisions relating to leaves apply to those not taken under the FMLA and that employers must comply with the FMLA’s requirements.) To require the certification, you must have "a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that [the em-ployee] will pose a direct threat due to a medical condition." This interpretation appears to conflict with previous EEOC guidance in its ADA Technical Assistance Manual (TAM). The TAM indicates that employers may require return-to-work certification to determine if the person can perform the essential functions of the job (as opposed to having to affirmatively believe the employee cannot).

In addition, the Guidance also may limit FMLA return-to-work certifications even though it indicates it does not apply to FMLA leaves. The FMLA regulations allow employers to require a return-to-work certification for all medical leaves, without limitation, as long as the requirement is applied uniformly to all similarly situated employees returning from leave, not just those on FMLA leave. There- fore, if you comply with the Guidance by limiting return-to-work certifications for non-FMLA leaves, you also may have to apply the same standard to FMLA leaves.

Overall, the new ADA Guidance provides helpful analysis regarding when you can require employees to answer questions regarding their medical condition or take medical examinations. However, since it also raises questions about other issues, such as asking about prescription drug use and return-to-work certifications, you should consult legal counsel to determine how to apply the Guidance. Although the Guidance does not have the same force of law as the statute or even the regulations, the EEOC will follow it when it investigates claims, and courts may rely on it to interpret the ADA.

For more information on EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, see www.eeoc.gov/docs/guidance-inquiries.html.