The Americans With Disabilities Act ("ADA") limits an employer's ability to
make disability-related inquiries or require medical examinations at three
stages: pre-offer of employment, post-conditional offer of employment, and
during employment. The EEOC previously issued a guidance on pre-employment
disability-related inquiries and medical examinations, in which it
addressed the ADA's restrictions on disability-related inquiries and
medical examinations at the pre- and post-offer stages. In its July 27
guidance, the EEOC focused on the ADA's limitations on disability-related
inquiries and medical examinations of current employees. Such inquiries are
limited by the ADA to those that are job-related and consistent with
business necessity.
Other provisions of the ADA are limited to protecting qualified individuals
with disabilities, but in this instance the EEOC states that the
restrictions on inquiries and examinations apply to all employees. Thus,
any employee, whether or not disabled, has the right to challenge a
disability-related inquiry or medical examination that is not job-related
and consistent with business necessity.
Job-Related Inquiries
A disability-related inquiry or medical examination of an employee is
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 an essential job function will be impaired by a medical
condition; or (2) an employee will pose a direct threat due to a medical
condition. Disability-related inquires and medical examinations that follow
up on a request for reasonable accommodation when the disability or need
for accommodation is not known or obvious also may be job-related and
consistent with business necessity.
According to the EEOC, only in limited situations involving public safety
jobs may employers require employees to take periodic medical exams or to
report the use of prescription medications that may affect job performance.
Likewise, only in limited circumstances may an employer require an employee
who has been away from work attending an alcohol rehabilitation program to
be subjected to periodic alcohol testing.
Applying Discipline Uniformly
Furthermore, the EEOC provides that if an employee fails to respond to a
disability-related inquiry or fails to submit to a medical examination that
is job-related and consistent with a business necessity, the action the
employer may take in response must be tied to its reason for making the
inquiry or requiring the examination. Under such circumstances, the
employer may discipline the employee for past and future performance
problems in accordance with a uniformly applied policy. The employer
cannot, however, discipline the employee for refusing to take the medical
examination or respond to the inquiry.
It may be that what this EEOC guidance illustrates best is that navigating
the murky waters of ADA compliance can be tricky. When in doubt, the best
course of action may be to consult with your employment law attorney.
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