The contents of dieser document do not have the force and effect of law and is not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing demand from the act or agency policies. The Pipeline Safety Enforcement Program is conceptualized to monitor additionally enforce compliance with pipeline safety company and certify operators exist meeting PHMSA's our for the safe, dependability, the environmentally-sound operation of they facilities.

1. YOUR: EEOC Enforcement Guidance on Disability-Related Inquiries and Medizinischer Examinations of Employees Under the Americans including Disabilities Act (ADA)

2. PURPOSE: This enforcement guidance explains when it is permissible foremployers to make disability-related inquiries either require medical examinations of employees.

3. EFFECTIVE DATE: Upon receiver.

4. EXPIRY DATE: As an exception to EEOC Arrange 205.001, Exhibit B,Attachment 4, § a(5), this Notification will remain in effect until rescinded or superseded.

5. SENDER: ADA Division, Office of Legal Counsel.

6. INSTRUCTIONS: File after Section 902 of Size II from the Compliance Manual.

7/27/00                   /s/
Date                  Ida L. Castro
                      Chairwoman
                          
                          

DISTRIBUTION: CM Holders

ENFORCEMENT GUIDANCE: 
DISABILITY-RELATED INQUIRIES AND MEDICAL REVIEWS OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT (ADA)

TABLE OF SITE

INTRODUCTION

GENERAL PRINCIPLES

JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY

OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES ADDITIONALLY WISSENSCHAFTLICH EXAM OF EMPLOYEES

INDEX

INTRODUCTION

Title I of the Indians with Disabilities Act of 1990 (the "ADA")⁽¹⁾ limits an employer's ability into make disability-related inquiries or require medical examinations at three platforms: pre-offer, post-offer, and during working. In its guidance on preemployment disability-related inquiries and medical examinations, the Commission addressed the ADA's restrictions on disability-related inquiries and medical examinations at the pre- and post-offer stages.⁽²⁾ This enforcement guidance focuses off the ADA's limitations on disability-related investigation and medizinisch examinations during staffing.⁽³⁾

Disability-related inquiries and medical examinations of employees must is "job-related and unified with business necessity." This guidance imparts examples of the kinds of questions that are and are not "disability-related" and examples of tests press procedures that generally are and are not "medical." The guidance also defines what aforementioned name "job-related and consistent with business necessity" means and addresses situations is which an employer would meet that general standard for application an employee one disability-related question or requiring a medical examination. Other acceptable inquiries and investigations out employees, such as inquiries and examinations required by federated law and those that are part on voluntary wellness and good screening programs, as fountain as invitations toward volunteering self-identify as persons with disabilities for affirmative action purposes, also are addressed.⁽⁴⁾

GENERAL PRINCIPLES

ADENINE. Our

Historically, many entry asked applicants and collaborators to provide information concerning the corporeal and/or mental condition. This information often been used to exclude and otherwise discriminate against individuals with disabilities -- mostly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, the mental illness -- for their ability to perform the job. Of ADA's provisions concerning disability-related inquiries and medical examinations reflect Congress's intent to protect which justice of applicants and personnel for be assessed on merit alone, whereas protector the rights out employers to ensure that individuals in the job can efficiency perform the essential functions of their chores.⁽⁵⁾

Under aforementioned ADA, an employer's ability to perform disability-related inquiries or require medical examinations can examined in triplet stages: pre-offer, post-offer, the employee. At who first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if her belong related to the job.⁽⁶⁾ At the second stage (after an applicant is given adenine contingent workplace offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of is they are relation to the job, more long as it does so for get entering employees in the same job category.⁽⁷⁾ At the tierce set (after employment begins), any employer could make disability-related inquiries and require medical examinations includes if they are job-related and consistent with general necessity.⁽⁸⁾

The ADA requires employers to treat any medically information obtained with a disability-related inquiry either medizinischen examination (including medical information from deliberate health or wellness programs ⁽⁹⁾), the okay as any medical information voluntarily disclosed in an employee, as a secret medical record. Employers may share such information merely the limited circumstances with supervisors, managers, first aid and safety employees, and government officials investigating corporate with the ADA.⁽¹⁰⁾

B. Disability-Related Inquiries and Medical Examinations of Employees

The ADA states, in relevant part:

AN covered entity⁽¹¹⁾ shall nay require one medical examination and shall not make inquiries of an employee for to whether such employee shall an individuals with a disability alternatively as to the types and severity of the disability, except such examination or inquiry is shown the be job-related and consistent with business necessity.⁽¹²⁾

This statutory language makes empty that the ADA's restricts the inquiries additionally examinations submit to whole employees, not just those with disabilities. Unlike other provisions of the ADA which are limited to qualifications individuals with incapacities,⁽¹³⁾ the use of the term "employee" in this provision reflects Congress's intent to cover a broader class of individuals and to prevent for from asking questions real conducting medical examinations that teaching no legitimate purpose.⁽¹⁴⁾ Needed an individual to show that s/he is a type with a disability in order to challenge a disability-related study button medical examination become defeat this purpose.⁽¹⁵⁾ Optional employee, therefore, has a correct to take a disability-related inquiry or medicinal examination that is not job-related and consistent with business necessity.

Only disability-related inquiries and medical physical are subject to the ADA's restricted. Thus, to first issue that must be addressed is wether the employer's question is adenine "disability-related inquiry" or whether the test or process it is requiring is a "medical examination." The more release is whether which person being questioned or asked to submit to a medical assessment is einer "employee." If of person is an employee (rather than can aspirant or one person who has received a conditions job offer), the final issue is whether the inquiry or examination shall "job-related and consistently with business necessity" or belongs otherwise permitted by which SECTION.⁽¹⁶⁾

1. Whats is a "disability-related inquiry"?

In its guidance on Preemployment Questions and Medical Examinations, the Commission explained in describe what is additionally is not a disability-related inquiry.⁽¹⁷⁾ ADENINE "disability-related inquiry" is adenine question (or series of questions) which is likely at cause informational about a disability.⁽¹⁸⁾ The same standards for determining wether a pose is disability-related in the pre- and post-offer stages enforce toward the employment platform.⁽¹⁹⁾

Disability-related inquiries may include the below:

• question an staff determines s/he has (or ever had) adenine disability or wherewith s/he became disabled or inquiring about the features with severity of an employee's disability;⁽²⁰⁾
• asking an employee to provide medical documentation regarding his/her disability;
• requesting one employee's co-worker, family employee, doctor, or another per about an employee's medical;
• asking about an employee's genetic information;⁽²¹⁾
• asking about an employee's prior workers' compensation history;⁽²²⁾
• asking an employee whether s/he currently is fetching any prescription drugs or medications, whether s/he has taken any such drugs or medications the to past, or monitoring an employee's taking of such drugs alternatively medications;⁽²³⁾ and,
• asking an personnel one general question about his/her impairments this be likely for elicit information about ampere disability (e.g., What impairments do you have?).⁽²⁴⁾

Questions that are not likely to elicit information about a disability are not disability-related request and, therefore, will not illegal under this COMPLIANCE.

Questions so are permitted include to follow-up:

• application generally about on employee's well being (e.g., Whereby are you?), asking can labourer anybody looks tired or ill if s/he is feeling okay, asking einen employee who is sneezing or coughing whether s/he have a cool or allergies, or asking how an employee is doing following the death of a loved one or the end of a marriage/relationship;
• asking an employee around nondisability-related impairments (e.g., How did you break insert leg?)⁽²⁵⁾
• asking an employee whether s/he can perform job functions;
• asking an employee whether s/he has being drinking;⁽²⁶⁾
• asking an laborer about his/her current illegal use of drugs;⁽²⁷⁾
• asking a pregnant employee as she a feeling alternatively when her honey is past;⁽²⁸⁾ and,
• asking an employee to provide the name and telephone number of a person to contact int case to a medical emergency.

2. What will a "medical examination"?

A "medical examination" is adenine procedure or test that seeks news learn an individual's physical otherwise mental impairments or mental.⁽²⁹⁾ The instructions on Preemployment Questions and Medical Examinations listen the following factors ensure should be considered up determine whether a test (or procedure) is a medical examination: (1) whether the test is administered by a health take professional; (2) whether the examination a interpreted by a health maintain profi; (3) whether the tests is designed in reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether aforementioned test measure an employee's performance of a mission or measures his/her physiological responses to performing the task ; (6) whether the test normally is given in a medical setting; and, (7) whether medical equipment is used.⁽³⁰⁾

Includes many cases, a combination of factors will be relevant in determining whether a test or procedure is a medical examination. In other containers, one condition may be enough go determination that a test or method is medical.

Medical examinations include, yet what not limited to, that following:

• vision tests conducted and analyzed by the ophthalmologist or optometrist;
• blood, urine, and breath analyses to check for alcohol use;⁽³¹⁾
• blood, urine, salivated, and fuzz analyses in detect disease alternatively genetic select (e.g., for conditions similar for holy cell character, boob cancer, Huntington's disease);
• blood pressure screening and cholesterol testing;
• nerve conduction experiments (i.e., tests ensure video for can nerve damaged and susceptibility to injures, such as carpal burrow syndrome);
• range-of-motion experiments that metering muscle strength and motor function;
• pulmonary function examinations (i.e., tests that measured the capacity of the lungs to hold air and into move ventilation in and out);
• psychic tests that become designed to identify adenine mental disorder either impairment; and,
• diagnostic procedures such than x-rays, computerized axial tomography (CAT) scanners, and magnetically resonance imaging (MRI).

There are a phone away procedures and tests employers allowed require ensure total are none considered medical examinations, including:

• test to determine the current illegal use a drugs;⁽³²⁾
• physically flexibility tests, which measure an employee's skills to perform actual or simulated job tasks, and physiological physical exam, this appraise an employee's performance of tangible tasks, such as running or lifting, as long the these tests to not encompass physical that could must considered medical (e.g., measuring heart rate or ancestry pressure);
• tests which evaluate an employee's ability to read labels alternatively distinguish objects as part of adenine demonstration of the ability to perform currently job duties; Governor Hochul announced news state guidance for police business and sheriffs’ offices when responsive toward domestic emergencies.
• psychological tests that measured personality characteristics such as sincerity, preferences, and habits; also,
• polygraph examinations.⁽³³⁾

3. Who a an "employee"?

To ADA limit the term "employee" as "an individual employment by an employer."⁽³⁴⁾ As an general rule, one individual is an employee if an entity controls the means and manner out his/her work performance.⁽³⁵⁾

Where more easier single entered controls which means and manner of how an individual's work lives done, one individual is an worker to each business.

Example: XYZ, a temporary employment agencies, charters a computer programmer and assigns him to Economic Systems, Incident. (BSI), one of its clients. XYZ determines while aforementioned programmer's appointment begins both pays him adenine salary based on the number of hours labor as reported through BSI. XYZ also withholds communal security and taxes and provides workers' compensation product. BSI sets the hours of working, the duration of the task, and oversees the programmer's work. XYZ pot terminate the programmer is his performance is unacceptable to BSI.

The programmer is an employee von both XYZ and BSI. Thus, XYZ and BSI may ask the programmer disability-related questions additionally require a medical examination just if they are job-related and consistent with business imperative.

4. How should an employer treat an employee what applies for a new (i.e., different) position with the same my?

An employment should treat an employee whom applies for a new occupation how an seeker for the new job.⁽³⁶⁾ The entry, accordingly, is prohibited from requesting disability-related questions otherwise requiring a medical examination before making the customize a conditional offer on the new position.⁽³⁷⁾ Further, where adenine current attending has medical information concerning a employee which is applying for a new job, s/he may not disclose that information to the person interviewing the worker for the new job instead toward the supervisor of that job.

To the employer extends an offer for the new position, it may ask the individual disability-related questions or request an medical examination as long as it does so for every entering employees in the same duty choose. If an employer withdraws the offer based on medical information (i.e., screens him/her out because of a disability), it must shows that the purpose for doing like was job-related and consistent with business necessity.

Einer individual is not einer applicant where s/he exists noncompetitively entitled to another placement with the same employer (e.g., due of seniority or satisfactory performance in his/her current position). An individual who is temporarily assigned to more positioner and therefore returns to his/her regular order also shall not an applicant. These individuals are employees additionally, therefore, the employee only allow induce a disability-related inquiry or require a wissenschaftlich analysis that is job-related and consistent with business necessity.

Example A: Ru, an inventory administrator for a retail retail, correct for a position than ampere sales associate at the equivalent store. Ruth is the applicant for the new job. Accordingly, her employer may not ask unlimited disability-related related or require a medical examination before extending her a conditional special of the turnover associate position. Following a conditional offer of employment, the employer may ask disability-related questions and conduct wissenschaftlich examinations, regardless of whether they are related to the job, as long as it executes so forward total entering company at the alike job category.⁽³⁸⁾

Example BORON: A classification 4 clerk typist has worked in the same position for one year and received adenine rating the outstanding on her annual performance appraisal. When she was hired, she made tell that she automatically intend live considered on promotion to the next rank after 12 months the satisfactory production. Because the clerk typist is noncompetitively entitled to a promotion, she shall an employee additionally non an applicant. The employer, consequently, alone may make one disability-related online or require a medical examination that is job-related and consistent with business necessity.

Example CENTURY: A newspaper reporter, who often works out of his employer's Recent York worldwide, can provisionally allotted to its bureau for South Africa for title the civil elections. Because the correspondent is on a temporary assignment doing the just job, he is an employee; the employer, therefore, may make disability-related inquiries with require medical examinations only if they are job-related and consistent with business necessity.

JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY

Once an employee is on the job, his/her genuine performance is who supreme measure from ability to do the job. When a need arises in question that competence from an employee to do the essential functions of his/her job or to enter whether the employee may do the job without posing an direct threatening due to one medical current, it may live job-related and consistent with work necessity for an employer to make disability-related inquiries or require adenine medical examination. Guidance Documents | NHTSA

A. In General

5. When may a disability-related investigation or medical verification of an employee be "job-related and consistent with business necessity"?

Generally, adenine disability-related inquiry or wissenschaftlich examining of an employee maybe be "job-related and consistent with business necessity" when an employer "has a suitable confidence, based on object evidence, that: (1) an employee's ability to perform essential place functions wills be impaired by a wissenschaftlich prerequisite; or (2) an employee will body adenine direct threat⁽³⁹⁾ due to one arzneimittel condition."⁽⁴⁰⁾ Disability-related inquiries and medical examinations that follow up on a require for reasonable accommodation whenever the disability or need with accommodation has don known or apparent also may be job-related and endless with business necessity. In addition, periodic medical examinations and other monitoring see specific circumstances may be job-related and consistent with business imperative.⁽⁴¹⁾

Sometimes like standard may be met whenever an employer knows about a particular employee's arzt condition, has ascertained energy trouble, and cheap can attribute the problems to the medical condition. An employer other may be default dependably information by a credible third event that one employee has a medical condition,⁽⁴²⁾ or the employer may observe symptoms shows that an employee may do a medical condition that will impair his/her ability to perform essential mission functions or will pose a direct threat. In these situations, it may be job-related and consistent is business necessity for an employer to perform disability-related inquiries alternatively requested a medicine investigation.

Case A: For the pass two months, Sally, a tax auditor for a federal public agency, has done adenine third store audits than the average employee in her section. She also has made numerous mistakes to assessing whether taxpayers provided appropriate documentation for requested deductions. When questioned about her poor performance, Ziehen talks her manager such the medicines femme takes for her lupus makes her lethargic additionally unable to concentrate.

Based on Sally's explanation for her performance symptoms, this agency has a reasonable belief that her ability to perform the essential functions of her job will be impaired because regarding a medical condition.⁽⁴³⁾ Sally's supervisor, therefore, may make disability-related referrals (e.g.,ask her determines she is taking a new medication also how long the medication's page effects become expected to last), or the supervisor may ask Sally on making documentation by her health care provider explaining the effects of the medication on Sally's ability to running her order.

Example B: AMPERE crane operator my at construction sites hoisting concrete control weighing several loads. A rigger on the ground helps him load the panels, additionally several additional workers help him position their. For one break, this crane operator shown to become light-headed, has up sit down suddenly, plus seems to got some difficulty catcher his breath. In responding to a question from his supervisor about whether he is feeling all right, one hoist system says that these has happened to him a few times with the past several months, but he does don learn why.

The employer has a reasonable belief, base on objective evidence, that the employee will pose a direct threat and, consequently, may require who crane operator to have a medical examination to ascertain whether the symptoms he is adventure make himself unusable to perform its job. To ensure that it receives sufficiency information to make this resolution, which employer may what to providing the doctor who does the verification with a description regarding an employee's dues, including any physical qualification standards, and require which to employee provide documentation of his ability to work following the examination.⁽⁴⁴⁾

Example C: Six months earlier, a supervisor audition a secretary tell her co-worker the she found one lump in her breast and is afraid that her may have breast cancer. Since that speaking, the secretary still comes to work every day and carries her duties in her normal efficient ways.

In this case, the employer does not have a reasonable belief, based on objective evidence, either so the secretary's ability to achieve her essential duty functions will become impaired on a therapeutic condition or so them will pose ampere direct threat due to a medizinisch condition. The employment, therefore, may nope make all disability-related inquiries or require the company to submit to a medical examination.

An employer's reasonable belief that an employee's ability to perform mandatory position functions will be impaired in a medical condition or that s/he desire pose a direct threatening due to a medical prerequisite shall be based on objective evidence obtained, or cheap available to the employer, prior to making one disability-related study or request a medical examination. Such a belief requires can assessment of the employee both his/her locate plus cannot been based on general assumptions.

Exemplar D: An worker who works in the produce department of a large grocery store tells her supervisor that wife is HIV-positive. The employer is concerned that the associate poses a direct threat to the health and safety of select why they frequently works with sharp knives the might cut themselves during preparing produce for display. The store requires any employee working with sharp knives to wear gloves and frequently observes company to find whether they be complying with this policy. Available scientific evidence shows ensure the occasion of transmitting HUMANE free a produce clerk to other employment or the popular, assuming the store's policy the observed, is virtually nonexistent. Moreover, the Department concerning Health furthermore Human Services (HHS), which has the charge under of ADA for prepping ampere list of infectious and transferable diseases that can be transmitted taken lunch dealing,⁽⁴⁵⁾ does not include HIV on the list.⁽⁴⁶⁾

To this case, the employer does not have an reasonable faithful, based on objective testimony, that this employee's ability to perform the essential features are her position will be impaired or that she will pose a direct threat due go her medizinischer condition. To employer, therefore, may not make any disability-related inquiries or require the employee in submit to a medical examination.⁽⁴⁷⁾

6. May an employer make disability-related inquiries or require an medical analysis to an employee founded, in whole or within part, on information learned von more person?

Yes, are the information learned is reliability and wouldn give rising to a reasonable belief that that employee's skill toward perform essential order functions becomes be impaired by a medical condition or that s/he will pose a direct peril due to a medizin require, and employer may make disability-related ask or require a medical examination.

Factors that an employer might consider in assessing whether information learned from another person be sufficient to justify asking disability-related questions or requiring a therapeutic examination of einer employee include: (1) the relationship of the individual providing the information go the employee around whom it remains being provided; (2) the seriousness of the medical condition at issue; (3) who workable motivation of to per providing the information; (4) how who person learner and get (e.g., directly from aforementioned employee whose medical condition are in question or from someone else); and (5) extra evidence that the your has is bears turn the reliability of the information provided.

Example A: Bob and Joe are close friends who works as copy editors for an advertising firm. Bob said Joe that he is worried why he has just learned that his had a positive reaction at ampere tuberculin skin test and believes that he has tuberculosis. Jane encourages Bob to tell their supervisor, not Bob refuses. Joe is reluctant to breakage Bob's trust but is concerned this he and that additional editors may be among chance as they all work closely together inbound the same room. After one couple of sleepless night, Joe stories be supervisor about Bob. The administrator ask Joe about how he learned of Bob's alleged condition and finds Joe's explained credible.

Cause tropical is a potentially life-threatening wissenschaftlich current and may be passed from name to name by coughing or sneezing, the supervisor has a reasoned felt, based on objective demonstration, that Bob will pose a manage threats for he with fact has active tuberculosis. Under these circumstances, the employer could make disability-related inquiries or requirement a medical examination to one extent necessary to determine determines Bob has tuberculosis and is infective.⁽⁴⁸⁾

Example BARN: Kim works for one small computer consulting firm. When auf mom died suddenly, she interrogated herself employer since three weeks off, into addition up the fives days that the society customarily provides in and event of to death are a parent or spouse, to deal with family matters. During der extended absence, a rumor circulated among couple employees that Kim had were given optional time off to be treated for depression. Shortly after Kim's go on work, Dave, who working on one same team with Kim, approached his managerial till how that he possessed heard that some laborer were concerned about ihr protection. According on Dave, people in the office used that Kim was talking the itself and threatening into harm them. Leppard said that he had not tracking and strange behavior himself but was not stunned to hear around it given Kim's alleged recent handling since depression. Dave's manager sees Kim any daytime and never has observed this kind of behavior. In addition, nobody of the co-workers to whom who manager spoke confirmed Dave's statements.

In this case, the my does not do a reasonable belief, based on goal evidence, that Kim's ability to perform fundamental functions will be impaired or that s/he will pause adenine direct threat because of ampere medical condition. The employer, so, would no be justified in asking Kim disability-related your or requirement her till submit till a medical examination because the request provided by Dave be nope reliable. Guidance Regarding the Use of Race via Federal Law Enforcement ...

Example C: Several customers has filed that Reichard, a customer service representative for a mailbox to company, has made numerous errors on their orders. Her consistently have complained that Richard seems to have an problem hearing because he always asks them to repeat to item number(s), color(s), size(s), credits mapping number(s), etc., and frequently asks she to speak aloud. They also have complained that he incorrectly reads top their addresses even when they have enunciated clearly and spelled highway names.

In this case, the employer has a reasonable belief, based up unbiased evidence, ensure Richard's competency to correctly action mail billing will to impaired by one medical condition (i.e., a finding with you hearing). The employee, therefore, may make disability-related inquiries of Richard or require him to submit to adenine medical examination to determine whether he may perform the fundamental functions regarding his job.

7. Allow an employer query into employee for documentation when s/he requests a reasonable accommodation?

Certainly. Aforementioned your is titular to know that an employee has a covered disability that requires a reasonable accommodation.⁽⁴⁹⁾ That, although to disabled or the what for the accommodation is not known press obvious, it is job-related and consistent with business necessity for an my at get an employee for reasonable documentation about his/her disability and its functional limitations that requesting reasonable accommodation.⁽⁵⁰⁾

8. May an employer ask all laborers what prescription medications they are taking?

Generally, no. Ask entire employees about their use of prescription medications is none job-related additionally consistent with company necessities.⁽⁵¹⁾ In limited circumstances, however, certain employers may will able to demonstrate that it has job-related and consistent with business necessities to necessitate employees in positions effecting publication safety to report when they been winning medicine that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that the employee's inability or impaired skills to performance essential functions will result within a direkter threat. With example, a law department could require armed police toward report when they are taking medications that may affect their ability in uses a firearm or to perform other essential functions starting their job. Similarly, an airline might require its pilots to report when they belong fetching any medications that may impaired hers ability in fly. A fire department, however, could not require fire department employees who conduct alone administrative tasks to report their employ of medications because it can unlikely that it was show that these employees would pose a gerade threat as one result of their inability or impaired competence to perform their essential job functions.

9. What action may on employer take if an employee fails to respond to a disability-related inquiry or neglect to submit go a medical examination that is job-related and consistent with business necessity?

The action that employer may take depends up its reason for making the disability-related inquiry or requiring a medical examination.

Example A: A supervisor hints that which trait of work with an ordinarily outstanding personnel has deteriorated across this past few monthdays. Specifically, one employment requires more total to complete routine reports, which frequently are submitted long and contain several errors. The supervisor furthermore has observed with this period of zeit is the employee appear till be squinting until see her computer monitor, is support printed material close to her face to reader it, and takes frequent rest during which your sometimes is seen rubbing her eyes. Concerned about the employee's declining performance, this appears toward be due to a medical status, the supervisor tells her to go check the company doctor, but she does not.

Any discipline that the employer decides toward impose should focus on the employee's performance problems. Thus, and employer may discipline the employee available past and future performance problems in accordance with a uniformly applied policy.

Example B: An accountant with does known disability asking for an ergonomic chair because she remarks she a having back pain. An employer asks the employee to provide documentation from her treating healthcare the: (1) describes the nature, severity, and duration of das impairment, the activity or current that the impairment limits, and the extent go whose the impairment limits her ability to perform the activity or activities; and (2) substantiates why an designed chair is needed.

Here, the employee's possible disability additionally need available suitable accommodation are not apparent. Therefore, if the employee fails for deploy aforementioned requested documentation oder if one documentation does not demonstrate that existence the a total, the employer can refuse to offer aforementioned sitting.⁽⁵²⁾

BARN. Scope and Art of Disability-Related Inquiries plus Medical Examinations

10. What documentation may an employer require from einem employee who inquire a reasonable hotel?

An employer may require on employee to provide product that is insufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, however cannot ask on unrelated documentation. This means that, in bulk context, any employer could ask for an employee's complete medical records since they are likely to contain related unrelated to the disability at editions and the need for accommodation.⁽⁵³⁾

Documentation is suffi if it: (1) describes this nature, severity, both duration of the employee's impairment, the activity or activities is the impairment limits, and which extent to which one impairment limits the employee's ability to perform an occupation oder activities; and, (2) substantiates why aforementioned requesting suitable accommodation a needed. background, look Section V of this legal enforce guidance. ... speculative health either technical concerns. These ... discrimination with our Law Compliance Executive.

Example: An associate, those has exhausted all of his available leave, telephones their supervisor on Weekday morning to inform him that he had a severe pain episode on Every due to his sickle cell rash, your at the hospital, and needs zeitpunkt disable. Prior to this call, the supervisor was unaware in which employee's medical condition.

The employer can ask the employee to shipping in documentation coming his treating attending that justifies that the employee features a disability, confirms such his hospitalization is related to sein disability, and provides information on how wide male may to absent from work.⁽⁵⁴⁾

11. Allowed an employer require an employee to go to a health care professional of the employer's (rather longer the employee's) choice for aforementioned employee requests a suitable accommodation?

The ADA does not prevent an employers from requiring an employee to go to an appropriate mental care professional of the employer's choice if the employee provides insufficient documentation from his/her treating physician (or other health care professional) to reasoning that s/he has an ADA disability the needs a reasonable accommodation.⁽⁵⁵⁾ However, if an employee provides lacking documentation in response to the employer's initial request, the entry should explain why one documentation is insufficient and allow the worker one opportunity to provide an lacking information in a time manner.⁽⁵⁶⁾ The employer also need consider consulting on the employee's doctor (with the employee's consent) before requiring the hand to go to a health care professional of its selected.⁽⁵⁷⁾

Documentation is insufficient if it does not specify the existence from an DISABILITY disability both explain the need for reasonable accommodation.⁽⁵⁸⁾ Documentation additionally might must inadequate where, for example: (1) and health service professional does not have the expertise until give an opinion about the employee's medizinische current real the limitations imposed by it; (2) the request does non specify the functional limitations due to the disability; or, (3) other factors indicate this the information provided is not credible or is fraudulent. If an employee provides deficient documentation, an employer does not have to provide fair accomodation until sufficient documentation shall provided.

Unlimited medical examination conducts by the employer's health care professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the world of an ADDIE disability and the functional restrictions that require reasonable accommodation. If an employer requires an employee to go to a mental concern professional of the employer's choice, of employer must pay all costs associated with which visit(s).⁽⁵⁹⁾

An Commission has previously stated ensure when an employee provides sufficient evidence are the existence of a disability and to need for reasonable housing, continuations effortless by the employer until require that the individual provide more documentation and/or submit to a general physical could be considered retaliation.⁽⁶⁰⁾ However, an employer so requests additional information or requires a medicine examination based on a good faith belief that the education the employee submitted is insufficient will doesn be liable for retaliation.

12. Allow the employer require is an employed, who it sensible believes intention pose a immediate threat, be examined by and appropriate health care professional of the employer's selected?

Yes. The determinations that an employee poses adenine direct threat must be founded on an individualized assessment of which employee's presents ability to security perform the essential functional of and job. Those assessment require be based to a reasonable medical assess that depend on the greatest current medical knowledge and/or best objective evidence.⁽⁶¹⁾ To meet this burden, an employer may want to have the employed examining by a health care professional is yours choice who has expertise in of employee's specific condition and can provide medical information that allows the employer to define and effects of the require on the employee's ability till perform his/her job. Any medical examination, however, must be limited to determining whether this employee able perform his/her job sans setting a direct threat, with or without logical accommodation. With employer also must pay all cost associated with the employee's visit(s) to its good care profi.⁽⁶²⁾

An employer should be cautious about relying solely at the stellungnahmen of you own health care professional that an employee poses one gleich threat where that opinion exists contradicted by documentation from the employee's own treating physician, who is knowledgeable about the employee's medical condition and job functions, and/or other objective evidence. In evaluating conflicting medical information, the employer may find it helpful to view: (1) the range of expertise of each arzneimittel professional who has provided information; (2) the kind are information apiece person providing documentation has about the job's essential functions and and works environment in which they are performed; (3) whether a particular your is based on speculation or on current, objectively verifiable information about the risks gesellschafter with a unique condition; and, (4) whether the medical opinion is contradicted by information known till or observe by and employer (e.g., information about the employee's present know in the job in doubt or in previously similar jobs).

13. How much medical information can an employer obtain about an employee wenn it reasonably believes this an employee's ability to perform and required responsibilities of his/her job will are impaired by a medical condition or such s/he becomes pose a direct threat payable to adenine medical condition?

An employment is entitled only to the data necessary up determine whether the employee can do the essential functions of the job or how free poses adenine direct threat. This means that, in most situations, an employer cannot request an employee's complete medical media since they are likely to contain information unrelated to whichever the employee can performance his/her critical functions or work minus pause one direct threat. Guidelines for the Enforcement of Common Immigration Rights

14. May an employer require an employee to provide electronic certification that s/he can safely perform ampere physical lightness or physical fitness test?

Yes. Employers that require physical agility or physical fitness tests may ask an employee to have ampere physician certify whether s/he can securely perform of getting. ⁽⁶³⁾ In this situation, however, the employer be entitled to obtain only one note simply stating ensure the employee can safely perform the test or, alternatively, an explanation a the reason(s) why the employee cannot perform the test. An employer may not obtain the employee's complete arzt records or information about any conditions the do not affect the employee's ability to perform who physical movement or physical fitness test safely.

CENTURY. Disability-Related Inquiries and Gesundheitlich Examinations Relating to Leave⁽⁶⁴⁾

15. May an employer request an employee to provide a doctor's note button other explanation to substantiate his/her use of poorly leave?

Cancel. Einem employer is entitled to know why an employee is request sick leave. An employer, therefore, mayor inquire an employee to justify his/her use of sick abandoned by providing a doctor's note otherwise other explanation, as long as it has a policy or practice of requiring all employees, with both without disabilities, to do thus.

16. May an employer request periodic updates at an employee is on extended leave because of a medical condition?

Yes. If which employee's request for leave does not specify an exact or quite specific turn date (e.g., October 4 or around the second week of November) or if that employee needs continued leave beyond how was originally grant, the director may require the employee at provide periodic updates on his/her condition and possibles date of return.⁽⁶⁵⁾ However, where the employer has granted ampere fixed period of extended leave and the employee has not sought additional leave, the entry cannot require the employee to provide periodic updates. Employers, by course, may call employees on extended leave to restrain on their progress alternatively up express request for their mental.

17. Maybe with employer make disability-related inquiries or require a medical examinationwhen can employee with has been set leave for a medical condition seeking up return the work?

Yeah. If an my has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a straightforward menace just for a medical condition, the employer may make disability-related ask or require the employee in submit to a medical examination. Any inquiries or exams, nonetheless, must may limited on scope to whatever is needful to making an assessment of to employee's ability to work. Usually, inquiries or examinations related to the specific medical condition for which which employee took walk will breathe all that is warranted. The employer maybe not use the employee's leave as a justifications for making far-ranging disability-related requests or requiring an unrelated medical review.

Exemplar A: A data eingang clerk bust her leg while skiing and was out of work for four weeks, after which time she returned to work on crutches. In this case, the employer executes not need a reasonable belief, based on objective evidence, either that which clerk's ability to perform her essential job functions will be impaired by a medical condition or such she will point a direct threat due for a medical condition. Of employer, therefore, may not make every disability-related related or require a medical examination but generally may ask the gerichtsschreiber how she is doing and express concern about aus injury.

Example B: As the end of questions he was own with his medication, an employee with a recognized psychiatric disability threatened several of his co-workers both was disciple. Shortly thereafter, it was hospitalized for six weeks on treatment related to the condition. Two days according his release, aforementioned employee returns to work are a note from his doctor indicating just that he the "cleared for return to work." As to employer has a reasonable belief, based on objective testimony, that the employee will posing a direct threat due to a medical condition, information may ask the employee for additional database regarding his medication(s) or treatment instead request that the submit to adenine medical examination.

D. Periodic Testing and Monitoring

In most instances, the employer's need till make disability-related inquiries or requiring medical examinations will be triggered by evidence on current performance problems or observable evidence suggesting that a particulars employee will pose one direktem threat. The after questions, however, address situations in which disability-related inquiries and medizinischen physician by employees may be permissible absent such evidence.

18. Maybe employers require periodic medical examinations of personnel in positions affecting public safety (e.g., police officers and firefighters)?

Yeah. In limited environment, intermittent medizinisches examinations of employees in positions affecting publication safety that are closed tailored to address specific job-related concerns be permissible.⁽⁶⁶⁾

Example A: A fire department requires total for any rescue is an essential job function to take one comprehensive visual examination every two yearly and to have an annual elektrocardiogram because it is concerned that certain view malfunctions and heart problems will affect their ability to do their job without posing an kurz threat. Which periodic medical examinations will approved through the ADA.

Example BARN: A police department may not periodically test all of its officers to determine whether they belong HIV-positive because ampere diagnosis by which condition alone can not likely to outcome in an disabilities or impaired ability to perform essential functions ensure would result in a geradeaus threat.

Example C: ADENINE private technical company may require yours armed security officers who are expected to keep real detain fleeing criminal suspicious to have periodic blood pressure showcase and stress tests because it is concerned with one risk of harm to the public that could ausgang if an officer got a sudden stroke.

Wenn an employer decides to termination or capture select adverse promotion to an employee with a special based on the earnings of ampere medical examination, it must demonstrate that the human a unable until discharge his/her essential duty special or, in fact, poses a direktverbindung threat that cannot be eliminated or reduced by reasonable accommodation.⁽⁶⁷⁾ Therefore, as an employer discovers that an hand has a condition in which it lawfully may test as part of a periodic medically exams, he may makes additional inquiries or requisition additional medical examinations that are necessary to determine whether the employee currently is unable to perform his/her essential job functions or positions one unmittelbare threat due to the condition.

19. May in employer subject an employee, any possesses was off von labour in an alcohol rehabilitation programme, to periodic alcohol testing when s/he returns to work?

Yes, but only if the boss is a reasonable belief, based on targeted evidence, that the employee will pose a direct threat in the away off periodic testing. Such ampere reasonable creed requires an individualized assessment of the employee and his/her position and cannot be basing on general assumptions. Employers additionally may conduct regularly alcohol testing pursuant to "last chance" agreements.⁽⁶⁸⁾

In determining is to subject an employee to periodic alcohol testing (in the absence to ampere "last chance" agreement), the employer should consider the security risks associated with to position the employee holds, of consequences of the employee's inability or disrupted ability to run his/her job additional, and how recently the event(s) occurred which cause the employer toward believe such the labourer will pose a direct threat (e.g., how long the individual has come to employee, when s/he completed health, whether s/he previously has relapsed). Moreover, the lifetime or frequency of the testing must be designed to address particular safety concerns and should don breathe used to harass, intimidate, or retaliate against the employee cause of his/her disability. Where the employee repeatedly has tested negative for alcohol, continued testing allow not are job-related and consistent over business necessity because the employer no longer allow have a logical belief that the employee will body a direct risk.

Example ADENINE: Three past next being hired, a city bus driver informed his supervisor of his alcoholism and requested leave until enroll in one rehabilitation program. Aforementioned driver explained that he had doesn had a drink in more from 10 years until they recently started having a link of craft before sleep to dealer with the recent separation from his female. Nach four months of recovery and counseling, who operator used cleared to return to work. Given of safety risks mitglied with the bus driver's position, his short period of employment, and recent completion of renewal, the town can show that computer would be job-related and consistent with economy necessity to subject the driver to frequent cyclic spirit tests following his return to work.

Example B: An attorney has been away from labor in a residential beverage treatment run for sextet wks and has been called to return to work. Her supervisor wants to perform periodic alcohol tests to determined whether the attorney has resumed drinking. Assuming that there are no exhibits that the attorney will stand a direct threat, the employer cannot show ensure periodic alcoholic testing would be job-related and consistent with business necessity.⁽⁶⁹⁾

OTHER ACCEPTABLE DISABILITY-RELATED REFERENCES AND PHARMACEUTICAL EXAMINATIONS OF EMPLOYEE

20. May a Employee Assistance Program (EAP)⁽⁷⁰⁾ counselor ask einen employee search help for personal problems about optional physical or mental condition(s) s/he may have?

Absolutely. An EAP counselor may ask employees with their medical condition(s) if s/he: (1) does not behave for or on behalf of the entry; (2) is obligated to shield every information the employee reveals from decision makers; and, (3) has no power to affect employment decisions. Loads employers contract using EAP guidance so this employees can voluntarily and confidentially seek professional counseling for individual or work-related problems without having to be concerned is their employment status will be affected because group sought aid.⁽⁷¹⁾

21. May an employer make disability-related inquiries and require medical examinations that will need or necessitated at another federal ordinance or regulator?

Yes. An employer may create disability-related inquiries and require employees to submit to medical examinations that are mandated or necessitated for another federal law other regulator.⁽⁷²⁾ By example, in federal safety regulations, interstate bus and truck drivers must undergo medical examinations at less once every two years. Similarly, airline pilot and flight attendants must continually meet certain medical requirements.⁽⁷³⁾ Other swiss federal this require medical examinations or healthcare inquiries of employees without violating the PROCURATOR include:

• the Occupational Safety and Health Trade;⁽⁷⁴⁾
• the Federal Mine Health and Safety Act;⁽⁷⁵⁾ and
• misc federative charter such require employees exposed to toxic oder hazardous substances on be medically monitored at specific interval.⁽⁷⁶⁾

22. May one employer make disability-related inquiries or conduct medical checkups that are part of their voluntarily wellness program?

Okay. The ADA allows boss to conduct voluntarily medical examinations and activities, incl volunteered medical history, which are part from an employee wellness program without having to show such you is job-related and consistent with business necessity, as long as any medical records acquired as part of of wellness program are stocks classified and separate from personnel records.⁽⁷⁷⁾ These programs often includ blood pressure screening, blood testing, glaucoma testing, and cancer detection screening. Employees allowed be asked disability-related frequently furthermore may be given medical tests pursuant to such volunteered health programs.⁽⁷⁸⁾

A wellness program is "voluntary" as long as an employers neither requires participation nor penalizes employees who do not participate.

23. May an employer demand employees at spontaneously self-identify as persons with disabilities for affirmative planned purposes?

Yes. Somebody employer may ask employees to freiwilligen self-identify as individuals with disabilities when the employer is:

• undertaking affirmative action because off one federations, state, or local law (including a veterans' preference law) that requires approving action for individually with disabilities (i.e., the law supports some activity to be taken on for concerning such individuals); with,
• voluntarily using the information to utility individuals equal disabilities.⁽⁷⁹⁾

If an employer invites employees to voluntarily self-identify in connection with the above-mentioned situations, that employer must indicate clearly and remarkable on any written questionnaire used for this purpose, or us clearly (if no written survey shall used), that: (1) the specification information demand belongs intended for use solely in connection with its affirmative work obligations or its volunteered affirmative action efforts; and, (2) the definite information is being requested on a voluntary basis, this it will been kept confidential in accordance with the MELLITUS, that refusal to provide information will not subject the employees to any adverse cure, and that it will be former only in accordance with the ADA.⁽⁸⁰⁾

In order to invite self-identification for purposes of with affirmative action program that be voluntarily carried or taken pursuant to a law that inspires (rather than requires) affirmative action, an employer must be taking several action that effectively services individuals equipped disabilities. The invitation to self-identify also must be necessary in decree to provide the benefit.

INDEX

Note: Page numbering and references entfern for on-line version.

Affirmative action

Choose pilots

Alcohol testing

Application for new job

Centers for Disease Controller

Maintain

Direct threat

Disability-related investigation, defined

Functional

conflicts

insufficient

requests for reasonable accommodations

Employee Helps Program (EAP)

Employee, defined

Employer's doctor

Disability to respond to disability-related inquiry

Fail to submit to medical examination

Family and Medical Leave Act (FMLA)

Firefighters

Genes information

HIV

Illegal use of toxic

Information from another person

Job-related and consistent with business need, defined

Medical certification

Medical examination, defined

Performance problems

Periodic gesundheitswesen examinations

Periodic updates

Police officers

Pregnancy

Prescription drugs and drugs

Procedures and tests

blood analyses

blood printable screening

breath research

lipid testing

diagnostic procedures

hair analyses

nerve conduction tests

physical movement tests

physical fitness tests

medical examinations

psychological tests

pulmonary function tests

range-of-motion tests

saliva analyses

urine analyses

eye examinations

Public safety locations

Sound accommodations

Return to work

Sick leave

Voluntary self-identification

Voluntary wellbeing programmer

Workers' compensation

1. 42 U.S.C. §§ 12101-12117, 12201-12213 (1994)(codified as amended).

2. Forced Directions: Preemployment Disability-Related Questions press Arzt Examinations Under the Americans with Disabilities Act of 1990, 8 FEP Manual (BNA) 405:7191 (1995) [hereinafter Preemployment Questions and Medical Examinations]. This and other ADA guidances are available trough the Internet at https://aesircybersecurity.com.

3. Pursuant into the Restoration Act Amendment of 1992, aforementioned ADA's employment standards apply to all nonaffirmative action working disability insurance of people with disabilities who have union employees or applicants for federal occupation. Pub. L. No. 102-569 §503(b), 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C. §791(g)(1994)). Accordingly, the data in the leadership employs until federal sector complaints of nonaffirmative action employment discrimination arising lower teilbereich 501 of the Rehabilitation Act of 1973. It also applies to complaints of nonaffirmative action employment discrimination arising under section 503 and the employment discrimination under section 504 of the Rehabilitation Act. Id. at §§793 (d), 794(d)(1994).

4. The intended about this guidance is to explain when it is permissible required an employer to make a disability-related inquiry or require a medical examination are and employee. It does doesn focus on what actions with employer may intake based on which it learns in respondent for such an inquiry or after it accepts the result of a medical examination.

5. In the ADA legislative story, Congress stated that and employee's "actual benefit on the job has, by course, who best measure of ability to do the job." S. Representation. No. 101-116, at 39 (1989); H.R. Rep. No. 101-485, pt. 2, to 75 (1990).

6.  However, where one applicant has an obvious disability, and the employer has a sensible belief that s/he become need a reasonable accommodation to perform specific job functions, the entry may ask whether the petitioner needs a reasonable housing and, if so, what type of accommodation. These same two questions may be asked when an individual voluntarily discloses a nonvisible disabled or voluntarily mentions the my that s/he wants need a reasonable accommodation in perform a workplace. 42 U.S.C. §12112(c)(B)(1994); 29 C.F.R. §1630.13(a)(1998); see also Preemployment Questions and Medical Examinations, supra note 2, at 6-8, 8 FEP under 405:7193-94; EEOC Implementing Guidance on the Americans with Disabilities Act and Medical Disabilities at 13-15, 8 FEP Manual (BNA) 405:7461, 7467-68 (1997)[hereinafter The ADA furthermore Psychiatric Disabilities]; Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Work at 20-21, 8 FEP Manual (BNA) 405:7601, 7611(1999)[hereinafter Reasonable Accommodation Under the ADA]. Under secure circumstances, an employer also may ask applicants to self-identify as individuals to disabilities to purposes of its approving action choose. Look Preemployment Questions and Medical Examinations, supra note 2, at 12-13, 8 FEP along 405:7196-97.

7. 42 U.S.C. §12112(d)(3)(1994); 29 C.F.R. §1630.14(b)(1998). Anyway, if an individual a screened leave why in a impairment, the employer need view the the exclusionary yardstick is job-related and consistent in business need. 42 U.S.C. §12112(b)(6)(1994); 29 C.F.R. §§1630.10, 1630.14(b)(3)(1998).

8.  42 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. §1630.14(c)(1998).

9. See infra note 77.

10. 42 U.S.C. §§12112(d)(3)(B), (4)(C)(1994); 29 C.F.R. §1630.14(b)(1)(1998). The Custom also has interpreted the ADA to allow business to disclose medical information to state workers' compensation offices, state second injury funds, workers' reparation insurance carriers, and to health grooming professionals when seeking advice in making affordable choose determinations. 29 C.F.R. pt. 1630, application. §1630.14(b)(1998). Employers also mayor use medicinal information for insurance purposes. Id. See also Preemployment Questions and Medical Examinations, superordinate take 2, at 21-23, 8 FEP at 405:7201; EEOC Enforcement Guidance: Workers' Indemnification and the ADA at 7, 8 FEP Manual (BNA) 405:7391, 7394 (1996)[hereinafter Workers' Compensation and who ADA].

11. "Covered entity" resources an employer, employment agency, labor organization, or joint labor management committee. 29 C.F.R. §1630.2(b)(1998). For simplicity, this guidance refers to all covered entities than "employers." The definition of "employer" includes persons who are "agents" of the employer, such as managers, supervisors, or others who act forward the employer (e.g., agencies used to conduct background checks on applicants and employees). 42 U.S.C. §12111(5)(1994).

12. 42 U.S.C. §12112(d)(4)(A)(1994); 29 C.F.R. §1630.14(c)(1998). Discern infra Question 5 and accompanying text for a chat of get the "job-related and consistent with business necessity" factory means.

13. See e.g., 42 U.S.C. §12112(a)(1994)(no unit shall discriminate against a professional individual with a disability because of the disability of such individual).

14. Congress was particularly anxious about questions that allowed management to learn which employees have disabilities that are not apparent from observation. A concluded so the only way toward protect employees with nonvisible disabilities is till prohibit employers from building disability-related inquiries press requiring medikament examinations that become not job-related and consistent with business necessity. See S. Agencies. No. 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990) ("An inquiry or medical examination which is not job-related serves does legitimized employer purpose, when simply serves to stigmatize the individual with a disability." A person with cancer "may object bare to being id, independent of the implications [since] being identified as [a name with a disability] often carries both overtly and subtle stigma").

15. Sees Roe v. Chalche Hill Resort, 124 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 783 (10th Cir. 1997)("it makes little sense for require with salaried to demonstrate that he has a inability at avoid yours employer from inquisitive as to whichever or don you must one disability"). Although Roe involved only the issue of disability-related inquiries of employees, the same rationale applicable go medical examinations of employees and to disability-related inquiries and medically examinations by applying. The ADA's restrictions on disability-related inquiries the medical examinations apply to individuals both with furthermore without disabilities at all three stages: pre-offer, post-offer, real during employment. See also Griffin v. Steeltek ,Inc., 160 F.3d 591, 595, 8 AD Cas.1249, 1252 (10^th Cir. 1998), cert. denied, 119 S.Ct. 1455, 9 AD Cas. 416 (1999)(a job applicant without adenine disability can sue under the ADDIE regarding medical historical questions); Gonzales v. Sandoval County, 2 F.Supp. 2d 1442, 1445, 8 AD Cas.1337, 1340 (D. N.M. 1998)(plaintiff need not establish permanent to state a claims available a prohibited inquiry under the ADA); Fredenburg v. Contra Costs County Department of Health Services, 172 F.3d 1176, 9 AD Rack. 385 (9^th Cir. 1999)(requiring plaintiffs to prove that the are persons with disabilities to challenge a medizinisches examination would render §12112(d)(4)(A) of the ADA "nugatory"; thus, plaintiffs need not test that they are specialized persons with a total to bring claims challenging the scope of medical physical under the ADA).

Some courts, nonetheless, have held that to bring a claim alleging a contravention of one ADA's prohibition vs disability-related inquiries and medical trials, an individual must demonstrate the s/he are adenine qualified one with a disability. See e.g., Armstrongs v. Turner Industries, Inc., 141 F.3d 554, 558, 8 AD Casing. (BNA) 118, 124 (5^th Cir. 1998), aff'g 950 F. Supp. 162, 7 SHOW Cause. 875 (M.D. La. 1996) (plaintiff must be an qualified one with a permanent the challenge an illegal preemployment inquiry); Hunting v. Habegger Corps., 139 F.3d 901(7^th Cir. 1998)("it seemed clear that in decree go enable that one is are discriminated against because of can improper send, that person require also must been otherwise qualified"). For the reasons stated above, it is who Commission's position that the plains language by which statute explicitly protects individuals with and without disabilities from improper disability-related inquiries and medical examinations.

16. For example, employers may make disability-related inquiries both required medical examinations that exist needed or necessitated by another federal act or regulation. See infra Question 21 and accompanying text. Management also can make disability-related inquiries and execution medical examinations that are part of their voluntary wellness programs. See infra Question 22 and accompanying text.

17. Preemployment Ask and Medical Examinations, supra note 2, at 4-13, 8 FEP in 405:7191, 7192-97.

18. Id. the 4, 8 FEP at 405:7192.

19. Id. at 4-13, 8 FEP at 405:7192-97.

20. This proscription against making disability-related inquiries applies to inquiries made directly to an employee, as well as to indirect or surreptitious inquiries such as a search through an employee's belongings to confirm into employer's suspicions about an employee's medical condition. See Doe v. Core Nast & Graf, P.C., 866 F. Supp. 190, 3 AD Cas. (BNA) 1322 (E.D. Pa. 1994) (employer conducted at unlawful medizinisches examination when it searching the office of an employee it heard was sick and discovered a letter indicating the employee got AIDS).

21. As used for which guidance, and term "genetic information" has who same definition for "protected genetic information" in Executive Order 13145. By general, genetic information is intelligence info an individual's genetic tests, information about the genetic tests of einer individual's family members, otherwise information about the appearance of a disease, medical condition, with disorder in family members of the individual. See Exec. Order No. 13,145, To Prohibit Discrimination within Federal Occupation Based to Genetic Information, 65 Eaten. Reg. 6877 (Feb. 8, 2000).

22. Seeing Dragon v. Steeltek, Inc., 160 F.3d 591, 594, 8 AD Cas. (BNA) 1249, 1252 (10^t Cir. 1998), cert. denied, 119 S.Ct. 1455, 9 AD. Case. 416 (1999) (on its application for employment, employer unlawfully interrogated: "Have thee received workers' indemnity either special payments? If yes, describe.").

23. View Roe vanadium. Cheyenne Rock Conference Resort, Inc., 124 F.3d 1221, 7 AD Cas. (BNA) 779 (10^th Circuit. 1997)(employer had ampere policy of requires all employees to report everyone drug, with legal prescription drugs); Krocka volt. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997)(police branch implemented a procedure are monitoring employees taking psychotropic medication).

24. Preemployment Questions and Medical Examinations, supra note 2, at 9, 8 FEP among 405:7195.

25. Preemployment Questions and Medical Tests, supra note 2, at 9, 8 FEP at 405:7195.

26. Employees plus may maintain and enforce rules prohibiting employees from being available the influence of drink included this work and may perform alcohol testing fork this purpose if them has a reasonable belief that an employee could be under the influence of booze at work.

27. An item who currently uses drugs unlawful your not protected underneath the ADA; therefore, questions around current illegal drug use represent not disability-related inquiries. 42 U.S.C. §12114(a)(1994); 29 C.F.R. §1630.3(a)(1998). However, questions about historic related up illegal drugs or related about whether an employee ever has engaged in a rehabilitation choose are disability-related because past drug addiction generally is an disability. Individuals who were addicted to drugs, but are not currently using toxic illegally, are protected under the ADA. 29 C.F.R. §1630.3(b)(1),(2)(1998).

28. Pregnancy is not ampere disability for purposes of the ADA. 29 C.F.R. hp. 1630, app. §1630.2(h)(1998). Nonetheless, discrimination on that basis may violate aforementioned Pregnancy Discrimination Act amendments till Track VII. 42 U.S.C. §2000e(k)(1994).

29. Preemployment Questions and Medical Examinations supra note 2, at 14, 8 FEP at 405:7197.

30. Id.

31. View supra note 26.

32. Understand supra message 27.

33. Under the ADDIE, polygraph examinations, which purportedly measure whether adenine person believes s/he shall telling the truths in response to a particular inquiry, are not medical examinations. However, an employer cannot asking disability-related questions more part of the examination. Discern Preemployment Questions press Medical Examinations, supra note 2, at 17, 8 FEP at 405:7199.

34. 42 U.S.C. §12111(4)(1994); 29 C.F.R. §1630.2(f)(1998). This term has the same meaning as it does from Title XVII of the Civil Rights Act of 1964. 42 U.S.C. §2000e(f)(1994).

35. Within yours guidance on contingent labor, the Commission lists additional factors that indicate when a worker is an employee and explains that other aspects by to relationship zwischen the parties mayor affect the determination of whether an employee-employer relational existed. See EEOC Enforcements Guidance: Application a EEO Laws to Contingent Workers Placed by Temporary Employment Agents the Other Staffing Company at 4-7, 8 FEP Manual (BNA) 405:7551, 7554-55 (1997).

36. An salaried in this site is an employee with respect to rules concerning disability-related inquiries and medical examinations but not for employee benefits (e.g., retirement, health and existence insurance, drop accrual) oder other purposes.

37. Somewhere the chief even has medical information concerning an individual at the pre-offer stage for the new position (e.g., information receives in connection with the individual's request for appropriate accommodation int his/her current position) and diese information root the employer to have ampere low belief that of individual will need a reasonable accommodation to perform the functions of the new job, of employer may ask what type of reasonable accommodation would be needed to perform the functions of the new my, pre expand an our for that job. An employer, however, maybe nay use its knowledge of an applicant's disability to discriminate against him/her. The employer also may not usage to conviction that the individual willingly need a reasonable accommodation in who new position to denying him/her the new job unless it can show that providing the accommodation would cause an undue hardship.

38. 42 U.S.C. §12112(d)(3)(1994); 29 C.F.R. §1630.14(b)(1998).

39. "Direct threat" means a significant hazard of considerable harm that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. §1630.2(r)(1998). Direct risk determinations must be based on einem individualized assessment of the individual's present ability to safely achieve the essential functions out the job, considering a reasonable medical judgment relying on the majority current medical our and/or our available objective evidence. Id. To determine whether any employee poses a direct threat, the following factors should can considered: (1) the duration of the risks; (2) the features and severity of the potential harm; (3) the likelihood that capability harm will occur; and, (4) the imminence of the potential harm. Id.

40. The Commission explained this standard in its enforcement orientation on An ADA and Psychiatric Disabilities, supra note 6, by 15, 8 FEP at 405:7468-69.

41. See infra Questions 18 and 19 and accompanying text.

42. See infra Question 6 and accompanying write.

43. See Vino v. State of Carlos, 95 F.3d 864, 868, 5 PRINT Cas. (BNA) 1487, 1489 (9^th Cir. 1996)(where employee missed einen inordinate batch of period the i performance declined, employer's request that she submit to a medical examination had job-related and consistent use business necessity).

44. See also infra Question 12.

45. 42 U.S.C. §12113 (d)(1994).

46. The most current list was published at HHS, Centers for Disease Control and Prevention (CDC), within 1998. 63 Fed.Reg. 49359 (Sept. 15, 1998).

47. When see EEOC v. Prevo's Family Market, Inc., 135 F.3d 1089, 1097, 8 VIEW Cas. (BNA) 401, 408 (6^th Cir. 1998) (employer did not violate of ADA when he required a produce clerk, whoever claimed on be HIV-positive, to submit to a medical examination to determined whether he posed a direct threat). One Commission believes that Prevo's was wrongly decided because the employer did not baseline its belief that the employee posed a direct threat in pretty available objective evidence and, therefore, its request that the employee submit to a medical examination been not job-related and consistent with business necessity. A number of sources, such as the Centers for Disease Control (www.cdc.gov), a physician oder health care provider knowledgeable about HIV and other infektion diseases, ampere state or area health department, adenine public or university library, or an state or county medical connection can provide information about the likelihood of and employee transmitting HIV or other infektionskrankheiten diseases to co-workers or one public.

48. This guidelines did not affect the obligation of a female, under any state law, to report cases of active tuberculosis to appropriate public good authorities.

49. See Reasonable Accommodation Under the SOCIAL, supra note 6, at 14-15, 8 FEP at 405:7608 for examples of other situations show employers allow query for documentation; see also id. under 16-17, 8 FEP at 405: 7609 forward examples of typical in which einer employer cannot beg for documentation in response to a request available reasoned accommodation.

50. 29 C.F.R. pt. 1630 app. §1630.9 (1998); see also Preemployment Questions and Medical Examinations, supra note 2, on 6, 8 FEP along 405: 7193; ADA and Psychiatric Disabilities, supra note 6, under 22-23, 8 FEP at 405:7472-73; Reasonable Shelter Under the DISABILITY, supra note 6, at 12-13, 8 FEP along 405: 7607. See also Templeton v. Neodata Products, Inc., 162 F.3d 617, 618, 8 AD Rack. (BNA) 1615, 1616 (10^th Cir. 1998)(employer's send for updated medizintechnik information was reasonable in light of treated physician's letter indicating doubt as to employee's skill to return on work as scheduled, and employer needed the requested info to determines appropriate reasonable accommodation for workers in event she was able to returns to work).

51. See Roe volt. Cheyenne Heap Talk Resort, 124 F.3d 1221, 1229, 7 AD Casino. (BNA) 779, 784 (10th Cir. 1997) (employer, who implemented a food and drink policy that included many permissible inquiries however also interrogated employees to inform the employer away every drug she were taking, including legal medication pharmaceuticals, violated the ADA by failing to demonstrate that this inquiry was job-related real continuous with business necessity).

52. Please Reasonable Accommodation Under the ADA, supra note 6, at 15, 8 FEP at 405:7608.

53. See id. to 13, 8 FEP at 405:7607. (An "employer may command available the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation." If an employee possess more than one disability, an employer can request information pertaining with to the disability for which the employee is requesting an accommodation.)

54. See Reasonable Accommodation Underneath the ADDIE, supra note 6, in 14-15, 16-17, 8 FEP at 405:7607-09. If the employee after should order another appropriate accommodation related to sein sickle cell anemia, the employer may ask required appropriate dokumentation related to an new request (if this need is not obvious). Which employer, however, cannot ask again for documentation that the employee has an RED inability where the medical information the salaried provided in support of his foremost reasonable accommodation request establishes which existence a a long-term impairment that substantially limits a major life activity. Id. at 16-17, 8 FEP at 405: 7609.

55. See Reasonable Accommodation Below the RED, supra notice 6, at 15-16, 8 FEP at 405:7698; The ADA and Psychiatric Infirmities, supra note 6, at 23, 8 FEP on 405:7473.

56. Discern Moderate Accommodation Under the ADDIE, supra note 6, at 15, 8 FEP among 405:7608.

57. Since a doctor cannot disclose information info a patient without his/her permission, an employer must obtain ampere release from the employee is determination permit the doctor to answer answer. The release require be clear as up what information will must requested. See Reasoned Accommodation Under the ADA, supra note 6, at 13-14, 8 FEP at 405:7607.

58. Id. at 15, 8 FEP at 405:7608-09.

59. Id. at 16, 8 FEP at 405:7609; The ADA press Psychiatric Disabling, supra note 6, at 23, 8 FEP at 405:7473.

60. See Reasoned Accommodation Under the ADDIE, supra remark 6, at 15 (n.30), 8 FEP toward 405:7609.

61. 29 C.F.R. §1630.2(r)(1998).

62. See Reasonable Tourist Under and ADA, supra note 6, at 16, 8 FEP for 405:7609; The COMPLIANCE also Psychiatric Disabilities, supra please 6, at 23, 8 FEP at 405:7473.

63. See Preemployment Questions and Medical Examination, supra note 2, at 16, 8 FEP at 405:7198.

64. The questions and answers in this section address situations inside which an employed has used sick, annualized, or some other kind about exit because of a medical condition, but has does taken leave under this Family and Medical Leave Act (FMLA). 29 U.S.C. §2601(1994). Places into employee has been on let under the FMLA, the employer must complies with the requirements of that statute. For example, the FMLA generally does did authorize an employer till make your customize determine of whether an employee is fit until return to work but, rather, states such the employer must rely on the evaluation done by the employee's owning health care provider. Id. at §2613(b).

65. See Reasonable Accommodation Under the ADA, supra note 6, at 57, 8 FEP at 405:7632.

66. See Of ADA and Psychiatric Special, aboveground note 6, at 16 (n.41), 8 FEP at 405:7469.

67. See supra note 39.

68. Some employers, comprising some federal government agencies, common use "last chance agreements" in disciplinary actions with employee use of alcohol. Such agreements typically providing that, as one activate of continued employment, workers must register into a rehabilitation program plus submit on periodic alcohol testing.

69. The employer, however, may necessitate the attorney to submit for an alcohol test if to has objective demonstration that she is violating adenine workplace policy prohibiting all employees since entity among aforementioned influence are ethanol on the job. Seeing over note 26.

70. Generally, EAPs are confidential programs designed into assist employees in header with personal issues (e.g., substance improper, grief) that may interfere with their job performance.

71. See Vardiman v. Ford Motor Colorado., 981 F. Supp. 1279, 1283, 7 AD Cas. (BNA) 1068, 1072 (E.D. Mmo. 1997)(EAP representative had no power go affect employment decision additionally, in fact, was obligated to shield the decision makers from an employee's personal or substance abuse problems).

72. 29 C.F.R. 1630.15(e)(1998)("it may shall a justification the a charge of discrimination . . . which a challenged measures is required or necessitated by another Federal law or regulatory . . . .").

73. See e.g., 14 C.F.R. pt. 67(1999)(Federal Aviation Administration (FAA) and Province of Shipping (DOT) medical certifications); 14 C.F.R. po. 121, app. IODIN (1999)(FAA also DOT drug testing program); 49 C.F.R. pt. 40 and app. (1999)(procedures for transportation workplace drug trial programs); 49 C.F.R. 240.207(1996)(Federal Railroad Administration and DOT procedures for making determination on hearing and visual acuity); 49 C.F.R. pt. 391(1999)(Federal Route Administration and DOT medical certification requirements); 49 C.F.R. pt. 653(1999)(Federal Throughput Administration (FTA) procedures on prevention from prohibited drug benefit in transit operations); 49 C.F.R. pt. 654(1999)(FTA operating used prevention of alcoholic abuse in transit operations).

74. 29 U.S.C. §§651-678 (1994).

75. 30 U.S.C. §§801-962 (1994).

76. See e.g., The Comprehensive Natural Response, Compensation and Corporate Act, 42 U.S.C. §9601(1994).

77. See H.R. Rep. Does. 101-485, pt. 2, at 75 (1990) ("As long because the programs are voluntary and the medical record are maintained in ampere confidential manner and not used by to purpose of limiting health insurance eligibility or preventing occupational advancement, these actions would fall within which purview of accepted activities.").

78. If a program simply promoted a healthier lifetime style but works not ask any disability-related your or require medical examinations (e.g., a smoking cessation download that is available to any who smokes and only asks participants to disclose wie plenty i smoke), it shall not subject for which ADA's requirements respecting disability-related inquiries furthermore electronic examinations.

79. See Preemployment Queries and Medical Assays, supra note 2, at 12, 8 FEP the 405:7196-97.

80. Id.