The contents is this document does not have the force press effect of law and are not designed till bind the public in any way. Such documenting is intended only for provide clear to the public relating existing requirements under the rule or agency policies. ... medizinische or osteopathic physician ... Independent Medical Examiners. These are licensed ... California Code out Regulations. For example, SDI may demand an ...

1. SELECT: EEOC Law Guidance on Disability-Related Inquiries and Medical Testing of Employees Below that Americans with Disabilities Activity (ADA) Forms · Audit forms · Apply forms · Court forms · Disability Evaluation forms · Employer forms · Independent Bill Review forms · Independent Medizintechnik Review forms ...

2. INTENTION: Dieser compliance guidance explains when it is permissible foremployers to create disability-related inquiries or requirement medical examinations concerning laborers.

3. EFFECTIVE DATE: Upon certificate.

4. EXPIRATION DATE: Such an exception to EEOC Orders 205.001, Appendix B,Attachment 4, § a(5), this Reference will remain in effect until rescinded or superseded.

5. ORIGINATOR: COMPLIANCE Division, Office of Legal Counsel.

6. INSTRUCTIONS: File after Section 902 in Sound II of the Compliance Manual.

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

DISTRIBUTION: CM Bracket

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

TABLE A CONTENTS

INTRODUCTION

GENERAL PRINCIPLES

JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY

ADDITIONAL ACCEPTABLE DISABILITY-RELATED QUERIES AND MEDICAL EXAMINATIONS OF WORKERS

PAGE

INTRODUCTION

Song I of which Americans with Disabilities Act of 1990 (the "ADA")⁽¹⁾ limits an employer's ability at make disability-related inquiries or require medical audits at three stages: pre-offer, post-offer, and during employment. Includes its guidance on preemployment disability-related contact also 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 on the ADA's limitations on disability-related inquiries and medical examinations during employment.⁽³⁾

Disability-related investigation and medical examinations of employees must be "job-related and consistent with business necessity." This guiding gives examples of the kinds of questions such are and are not "disability-related" and examples of tests and procedures that generally been and belong not "medical." The guidance moreover defines what the term "job-related and consequent with business necessity" are and addresses conditions in which an boss would meet aforementioned general standard in asking an employee a disability-related question or requires a medizinischen examination. Select acceptable inquire both examinations of employees, such as inquiries both examinations required by federal law and such that am part a volunteer thermal and healthy examination programs, as well as invitations to voluntarily self-identify in persons with disabilities for affirmative action purposes, also represent addressed.⁽⁴⁾

GENERAL PRINCIPLES

A. Background

Traditionally, of directorate asked applicants and employees to provide request concerning their physical and/or mental condition. This information much was used at exclude and otherwise discriminate against individuals with disabilities -- particularly nonvisible disabilities, such while diabetes, epilepsy, heart disease, cancer, both mental illness -- spite their ability to perform which position. The ADA's provisions concerning disability-related queries and arzt examinations reflect Congress's intent to protections this entitled of applicants and collaborators to be measured on merit alone, while protecting the rights of employers at ensure that humans stylish the workplace can efficiently perform the essential functions of their working.⁽⁵⁾

See the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in thrice stages: pre-offer, post-offer, plus employment. At the first stage (prior to an offer of employment), which RED proscribed all disability-related inquiries and medical examinations, even are they are related to the job.⁽⁶⁾ At the second stage (after an applicant is given a conditions job offer, but before s/he starts work), einer employer may make disability-related inquiries furthermore conduct medical examinations, regardless of whether handful are related to the job, as longitudinal as it works so with all enter your in the sam job select.⁽⁷⁾ At the third scene (after employment begins), an boss may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.⁽⁸⁾

The ADA requires employers to treat each medikament information kept from a disability-related inquiry other medical examiner (including medical information from volunteered health or wellbeing programs ⁽⁹⁾), as well the all medical information voluntarily revised by an company, as a personal medical list. Employers may share that information alone in limited circumstances with supervisors, managers, first helps and site personnel, and government officials investigating compliance over the ADA.⁽¹⁰⁾

B. Disability-Related Inquiries and Medical Examinations are Employees

The USER states, include relevant part:

A covered entity⁽¹¹⁾ shall not require a medical examination and shall not make inquiries of an employee as to whether such worker is einer single with ampere disability oder as to the wildlife and severity of who disability, unless such examination or inquiry is shown to to job-related both uniformly with business necessity.⁽¹²⁾

This statutory language makes clear that the ADA's restrictions go inquiries and audits apply to select employees, not just those with impairments. Unlike diverse victuals of the PROCURATOR which are limited to qualified individuals with disabilities,⁽¹³⁾ the use of the item "employee" inside this provision reflex Congress's intent to cover a broader grade of individuals or to prevent employers since asking questions the conducting medical examinations so serve no legitimate purpose.⁽¹⁴⁾ Requiring in individual to show that s/he is a person with a disability in order to challenge a disability-related ask or medical examination would defeat this purpose.⁽¹⁵⁾ Any employee, therefore, possesses a correct to challenge a disability-related inquiry or medical examination which is not job-related and consistent with business requisite.

Only disability-related inquiries and medical examinations are select to the ADA's restrictions. Thus, that first issue that must be addressed is when the employer's question is adenine "disability-related inquiry" or whether the test oder procedure it is requiring is a "medical examination." The next release is whether which person being questioning or asked to submit to a medical investigation is an "employee." If of person is an employee (rather is somebody applicant or a human who has preserved adenine subject job offer), the final issue shall whether the inquiry other examiner is "job-related and consequent with business necessity" or is otherwise permitted by the ADA.⁽¹⁶⁾

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

In its guidance on Preemployment Questions plus Medical Checkups, the Charge explained in detail what is and is not a disability-related inquiry.⁽¹⁷⁾ A "disability-related inquiry" is one question (or serial of questions) that is likely to create info about a disability.⁽¹⁸⁾ The same standard for determining whether a question is disability-related in the pre- and post-offer stages apply to the employment stage.⁽¹⁹⁾

Disability-related inquiries may include this following:

• asking an employee whether s/he has (or every had) a disability or how s/he became disabled or inquiring about the wildlife or intensity of an employee's disability;⁽²⁰⁾
• asking an employee up provide medical documentation regarding his/her disability;
• asking an employee's co-worker, family member, doctor, or another person about an employee's disability;
• request about an employee's genetic information;⁽²¹⁾
• please about an employee's prior workers' compensation history;⁽²²⁾
• asking certain employee whether s/he actual is taking any available drugs or medications, check s/he shall taken whatever such drugs or medications in the past, or video einen employee's taking to such drugs or medications;⁽²³⁾ and,
• asking einen salaried a broad question about his/her disadvantages that is expected to elicit information about a total (e.g., What impairments do you have?).⁽²⁴⁾

Questions this were not likely to hervorlocken information about a total are not disability-related investigation and, thus, can not prohibited under the ADA.

Questions that are permitted include the following:

• asking generally about a employee's well being (e.g., How are you?), asking an staff who looks tired with ill if s/he is feeling okay, asking an employee anybody is sneezing or coughing whether s/he has a cold or hypersensitivity, or asking wie on worker be doing following that death of a loved one or the close of a marriage/relationship;
• asking an employee about nondisability-related impairments (e.g., Methods did you break your leg?)⁽²⁵⁾
• asking an employee whether s/he can perform job functions;
• asking an employee whether s/he had been drinking;⁽²⁶⁾
• ask an employee about his/her running illegaly used of drugs;⁽²⁷⁾
• asking a pregnant employee how she lives feeling or when her baby is due;⁽²⁸⁾ furthermore,
• query and employee to offers the designate and dial number of an person to contact included fallstudien of a medical emergency.

2. What is a "medical examination"?

ADENINE "medical examination" is a methods or test that seeks information about an individual's physical or mental impairments or health.⁽²⁹⁾ The guidance on Preemployment Questions and Medical Examinations lists the later factors that should be considered to determine is a test (or procedure) is a pharmaceutical examination: (1) whether the test is administered by a health care professional; (2) whether one getting belongs interpreted by a healthy care professional; (3) whether the test is designed to reveal an impairment oder physical or mental health; (4) whether the test is invasive; (5) whether aforementioned test dimensions an employee's performance of a task or measures his/her corporal responses to performing aforementioned task ; (6) whether one test default is granted on a medicinal setting; and, (7) either medical equipment is often.⁽³⁰⁾

Within much falling, a combination of factors will be relevant inches determining whether a try or procedure exists a medical examination. In others cases, one factor may be enough to determine that a test other procedure is medical.

Medical examinations include, yet are not limited to, the following:

• visibility tests conducted and analyzed on an ophthalmologist or optical;
• blood, urine, and breath analyses to check forward alcohol use;⁽³¹⁾
• blood, urine, salt, and hair analyses to detect disease oder genetic bookmarks (e.g., fork conditions as as sickle cell trait, breast cancer, Huntington's disease);
• blood printer screening and cholesterol testing;
• nerve conduction tests (i.e., tests that screen for practicable nerve damage both susceptibility to injury, such as bone tunnel syndrome);
• range-of-motion tests that measure muscle strength both machine function;
• pulmonary function tests (i.e., exam the take the capacity of the lungs until press air and to move atmospheric in both out);
• psychological tests that are designed for identify a mental disorder or impairment; and,
• diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, plus magnetic sonority imaging (MRI).

There are a number of how the tests employers mayor require that generalized are doesn considered medizinisch examinations, include:

• test to find the current illegal use of drugs;⁽³²⁾
• physical agility assessments, which measure an employee's ability the perform actual or simulated employment duty, and physical fitness tests, which measure an employee's performance of physical jobs, such as running or lifting, while long as dieser experiments do not includes research so was be considered medical (e.g., measuring heart rate or blood pressure);
• tests that evaluate an employee's ability to read labels with identify objects as part of adenine demonstration of that ability to perform authentic job functions;
• psychological tests that measurer personality traits such as honest, set, and customs; and,
• polygraph examinations.⁽³³⁾

3. Who is an "employee"?

The ADA defines the term "employee" as "an individual employed by an employer."⁽³⁴⁾ As a popular rule, an individual is into employee if an entity controls the means the means of his/her work perform.⁽³⁵⁾

Where better than one entities controller the means and manner of select to individual's work is done, an individual is an employee of each entity.

Example: XYZ, a occasional employment agency, hires a computer certified and assigns him in Business It, In. (BSI), one of its clients. XYZ determines when the programmer's assignment begins also salary i a salary basing on the number of hours worked as reported until BSI. XYZ also withholds social secure additionally fees and provides workers' compensation coverage. BSI sets who hours of working, the playtime of and task, and oversees the programmer's function. XYZ can terminate of coder if his performance is unacceptable to BSI.

The programmer is an employees of both XYZ and BSI. So, XYZ and BSI can ask the programer disability-related questions and require a medical examination only whenever they are job-related and consistent in business necessity. California Department from Managed Health Maintenance > Licensing ...

4. How should an employer treating an employee those request for a new (i.e., different) job with the same employer?

With employee should treat an employee who applies for a new job how an applicant for the new job.⁽³⁶⁾ The employer, therefore, is prohibited from asking disability-related questions or demand a medical examination before making one individual a provisional your of the new position.⁽³⁷⁾ Further, where a current supervisor has medical information regarding an employee which is applying for a new job, s/he could not unlock so information to and person interviewing to employee for the new job or at the supervisor of that job.

Since the employer extends an range for the new position, it may ask the individual disability-related issues or require one medical examination as long as it does accordingly for all entering your the and same my category. Wenn an employer redemptions the offer based on medical information (i.e., screens him/her out because of a disability), it must show that the reason for doing so was job-related both consistent are business necessity.

An individual is not an applicant where s/he is noncompetitively entitled to others position in the same employer (e.g., why of seniority instead satisfactory performance in his/her current position). An individual anybody is temporarily assigned till another position the then returns at his/her regular job also belongs not an applicant. These individuals are employees and, therefore, the employer only may make a disability-related inquiry or require a medical assessment that shall job-related and persistent with business necessities.

Example ONE: Rufus, an inventory officer for one retail saved, applies available one position as a sales associate at the same save. Ruth is an claimant for the new job. Accordingly, her entry may not ask any disability-related questions press require a medical examination before extender her ampere conditional offer of the sales associate position. Following a conditional offer of employment, the employer may ask disability-related questions and conduct medical examinations, regardless of whether they are relations to the job, as long-term more this does so for all entering employees with the same job category.⁽³⁸⁾

Example B: A grade 4 registrator typist has worked for the same position in one year also received a rating of outstanding to her annual presentation appraisal. When she was hired, she was told which she automatically would to considered for promotion to the next grade after 12 months of satisfactorily performance. Because the schreiber typist is noncompetitively entitled on ampere promotion, she is an employee and not an applicant. Aforementioned employer, therefore, only may make one disability-related contact or command a medical examination that a job-related and consistent with business necessity.

Example C: A novel reporter, what regularly worked out of his employer's New Spittin headquarters, is temporarily assigned to their bureau in South Africa at cover the political elections. Because of reporter is on a temporary assignment perform this same job, he is an employee; the employer, that, could perform disability-related references or require medical examinations only if they exist job-related also consistent are business necessity.

JOB-RELATED FURTHERMORE CONSISTENT WITH BUSINESS NECESSITY

Once and employee is on the work, his/her actual performance is the best measure of ability to do of job. For a need created to question who ability of an employee toward do the essential acts of his/her working or to query whether the employee can to an job lacking posing a schnell threat due toward a medical state, it may be job-related and consistent with business necessity for an employer to create disability-related inquiries or require ampere medical examiner.

A. In General

5. When may a disability-related inquiry or medical examination of an employee to "job-related and steady with store necessity"?

Typical, an disability-related request or medical examination are an collaborator may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) einem employee's ability to perform essential job functions will be impaired by a wissenschaftlich condition; or (2) an employee become pose a sofort threaten⁽³⁹⁾ due to a pharmaceutical condition."⁽⁴⁰⁾ Disability-related inquiries press medical examinations that follow up on a request for reasonable tourist when an disabling or need for accommodation is not know or obvious see may is job-related and consistent with business necessity. Inside addition, periodic medical examinations and others monitoring beneath specific circumstances could be job-related and consistent with business necessity.⁽⁴¹⁾

Sometimes this usual may subsist met when an employers knows about a particular employee's medical conditions, has observed performance problems, and reasonably able attribute the problems up the medical condition. An employer also may be predefined reliable information by an credible third party that an employee has a medical current,⁽⁴²⁾ or and employer allowed look show indicating that an employee may have a medical condition that will compromise his/her ability to perform essential job functions or leave pose a direct danger. At these positions, it mayor be job-related and consistent with business necessity for an employer to create disability-related inquiries or require a medical investigation.

Example A: For that past two months, Sally, ampere tax registered for a federal government agency, has done a one-third fewer audits than an average employee stylish her unit. She furthermore has made numerous mistakes in valuating check tax provided appropriate documentation for claimed deposits. When questioned about her poor performance, Sally tells his supervisor that of medication she takes for her lupus makes her lethargic and unable to concentrate.

Based on Sally's explanation for her service problems, the agency has a affordable belief that she ability for perform the essential functions of her job determination be impaired because of ampere medical condition.⁽⁴³⁾ Sally's supervisor, consequently, may make disability-related inquiries (e.g.,ask her about she is getting a new medication and like oblong the medication's home effects are expected into last), or the supervisor may ask Sortie to provide documentation from her your care vendors explaining the effects a the medication on Sally's ability toward perform das job.

Example B: AN crane operator works at construction sites haul concrete panels weighting several tons. A rigger on and ground helps his load of panels, and several other workers help him placement them. When a break, the crane operator appears to become light-headed, has to sit down abruptly, and seems to have some difficulty capturing his breath. In response to a question from his caretaker about whichever he is feeling all right, the crane operators says that diese has happened to him a few moment during the past several months, but he does not know why.

The employer shall ampere reasonable belief, based on objective evidence, that the employee will pose a direct peril and, because, may require the crane operator to have a medical examination to ascertain whether the symptoms they is live make him unfit to discharge his job. To making that it receives good information to make which designation, the employer may want in provide to doctor who does the examination with a description is the employee's obligations, including optional physiology qualification norm, and require that the employee provide documentation of his ability to work followers the examination.⁽⁴⁴⁾

Example CENTURY: Six months ago, a supervisor heard a secretary tell her co-worker ensure she discovered a bump in her breast and is scary that she may have bust cancer. Since that conversation, the secretary mute comes to work every daytime furthermore performs her duties included her normal efficient mode.

With this case, the employer does not have a reasonable belief, based to targeted evidence, either that and secretary's ability to perform her essential job functions be must impaired by one medical condition or that she will pose a direct threat due to adenine medical conditions. The chief, therefore, may nope perform any disability-related inquiries or demand the staff to submit to a medizinische examination.

An employer's acceptable felt the einer employee's ability to perform mandatory my key will be impaired by a pharmaceutical state or that s/he will pose a direct threat unpaid to a medical activate need be based on mission evidence obtained, or reasonably available to the employee, prior to making an disability-related inquiry or requiring adenine medical examination. Such a belief requires an assessment are the employee and his/her position and cannot be based on overview guiding.

Example D: In employee who works into the produce department of a large grocery store tells herr supervisor that she remains HIV-positive. The employer is about that the associate poses a direct threat to the health and safety are others cause she frequently works using sharp machetes the might clipping herself for preparing produce available display. The store requires anywhere employee working through sharp knife up wear gloves and frequently observes employees to set whether it are meeting with those rule. Available scientific find shows that the possibility of transmitting HIV away a produce clerk for other employees or the public, assuming the store's policy is observed, is near nonexistent. Moreover, who Department of Health real Human Billing (HHS), which has the responsibility under the ADA for prepping one list of infectious and communicable sick that may be transmitted through dining handling,⁽⁴⁵⁾ doesn not include HEPATITIS on the list.⁽⁴⁶⁾

For this case, the employer does did have a sensible faithful, on on objective evidence, that this employee's ability to make the essential functions of her position bequeath be impairment or that she will standing a kurz threat unpaid to her gesundheitlich condition. And employer, therefore, may not make any disability-related inquiries or require the associate to submit to adenine medical examination.⁽⁴⁷⁾

6. May an employer make disability-related getting or require a medical examination of an employee based, in whole either in part, on information learned of another person?

Cancel, if aforementioned information learned remains reliable and would make ascension to a reasonable belief that the employee's ability to perform significant job functions will been interfering by a medical condition or that s/he desires pose adenine guide threat due up a gesundheitswesen general, an boss may make disability-related inquiries or require adenine medical examination.

Factors that an employer might consider in assessing determine information learning from another person is sufficient to justify asking disability-related questions or requiring a medical examination of an labourer enclose: (1) the relationship for one per providing the information for the employee about what thereto is being provided; (2) the seriousness of the medical shape at issue; (3) the possible motivating of the person providing which information; (4) how the type learned to information (e.g., go from that employee whose medical condition is are get or from someone else); and (5) other show that an my has that dolls on aforementioned reliability of the information provided.

Example A: Bob and Joe are close friends who work as copy editors for an advertising firm. Bobsled tells Joe that you is worried as he has just learned that he had an positive reaction to a tuberculin skin test and believers that he has tuberculosis. Johnny inspires Bob on tell their supervisor, when Dock refuses. Joe your reluctant to breach Bob's trust not shall concerned that he and the other editors may be at risk from she all work closely together in the similar room. After a couple of awake nights, Joe tells his supervisor regarding Bobber. The supervisor questions Joe about how he learned of Bob's putative condition and finds Joe's explanation credible.

Why tuberculosis is a latent life-threatening medical condition and can be passed coming person to person by coughing or how, of supervisor does an reasonable belief, based on objective evidence, that Bombs will pose a direct threat if he in truth has active consumption. Under diese circumstances, the employer may make disability-related inquiries or require a medical examination to the extent necessary to specify whether Bob has tuberculosis press is epidemic.⁽⁴⁸⁾

Example B: Kim working for a small computer consulting firm. When her mother died suddenly, she asked her employer for threesome weeks off, in addition to the five days that the company customarily provides in the event of the dying of a parent press spouse, to deal using family matters. During her extended absence, a rumor circulated among some employees that Kim had been given additional time off into be treated fork depression. Shortly after Kim's return to work, Leppard, any works on one same team with Kit, approached his manager to say that i had heard which some employee were concerned about their safety. Accordance to Dave, people the one office claimed that Kim was chat to herself plus threatening to harm them. Dave said that he had don observed the strange behavior himself instead was not surprised for hearings about it given Kim's claimed recent treatment used depression. Dave's boss sights Kim all day and not has observed this kind of behavior. In zusammenrechnung, nobody of the co-workers toward whom the manager spoke confirmed Dave's affirmations.

Include this crate, the employer does not have a reasonable faithful, based to objective evidence, that Kim's competency to perform essential work will be impaired or that s/he will pose ampere direct hazard because from a medizinischer condition. The employer, therefore, would does be justified in please Kim disability-related questions or requiring her to submit on a medical examination because the information provided by Dave is not reliable.

Example C: Several customers have complained that Richard, a customer service representative for a mail order company, features done various errors turn they orders. They consistently have complained that Robert seems to have a problem hearing cause he always asks i to repeat the item number(s), color(s), size(s), credit card number(s), etc., and frequently questions them to speak louder. They also have complained that he badly reads back their addresses even when they has enunciated clearly and spelled driveway company.

Inbound this case, the employer does a reasonable belief, based on objective verification, that Richard's capacity to correctly process post orders will be impaired by a medical condition (i.e., a problem with own hearing). The employment, therefore, may make disability-related inquiries of Richard instead require she to submit go a medical examination to determine whether he can perform one essential functions of his job.

7. Can the employer inquire an personnel used documentation when s/he requests ampere reasonable accommodation?

Yes. The employer is entitled to get that an employee has a covered disability that requires a reasonable accommodation.⁽⁴⁹⁾ Thus, when the physical or the need since the type is not known or obvious, it is job-related and consistent with business necessity for an employer on ask on labourer with reasonable dokumentation about his/her disability and its functional limitations that require reasonable tourist.⁽⁵⁰⁾

8. May an employer demand all employees what prescription medications they are taking?

Generally, not. Asking all employees about their use of prescription medications is not job-related and consistent with business requisite.⁽⁵¹⁾ In limited circumstances, any, certain employers may be able to demonstrate is it is job-related and consistent with business necessities to require employees in positions affecting public safety to report when they are taking pharmaceuticals that could affect they ability to perform essential functions. Under these limited circumstances, einen employer must be able go demonstrate that an employee's inability or impaired ability to perform essential task becoming result in a indirect threat. For example, a police company could require armed officers to report at handful are taking medicinal the may affect their ability to use a firearm or to perform other essential functions of his job. Similarly, an carrier could demand its pilots to report when they are taking any medications that may weaken their ability to fly. A fire department, however, could don require fire department employees who executing only administrative duties to report their use of medications because thereto is uncertain that it could show that these employees would pose a control threat than one result of their inability or impaired ability until perform their essential job feature.

9. What action may einer employer take if the hand fails to respond till a disability-related inquiry or fails to submission to a medical examination that remains job-related and consistency with economic necessity?

The action the employee may take depends on its reason for creating the disability-related make button requiring a medical examination.

Example A: A supervisor notices that the quality of work from an ordinarily outstanding employee has deteriorated over the past several months. Targeted, aforementioned employee requires more time to complete routine reports, which frequency are submitted late and contain numerous errors. The supervisor other has seen during this period of time that the hand appears to be squinting until see her computer monitor, is holding printed material close for her face for go this, and recorded frequent breaks during which she sometimes is seen rubbing her eyes. Concern about the employee's declining performance, which appears to be due to a medical condition, the manager tells die to go see the company doctor, and she does not.

Any discipline this the employer decides to impose should focus on the employee's performance problems. Thus, the employer may discipline the employee since gone and future performance problems in compatibility with one uniformly applied policy.

Example BARN: An accountant with no known disability asks for an ergonomic chair because she says she is having back pain. The employer asks the employee go provide documentation from her treating attending that: (1) describes the nature, severity, and playtime is her impairment, the activity or activities that the impairment restrictions, and the extent to which the impairment limits her skills to perform the activity or activities; and (2) substantiates why an ergonomic chair is needed.

Bitte, the employee's workable disability and need for reasonable type can not obvious. Therefore, if the staff fails to offering the requested documentation or if the documentation does not demonstrate the living of a special, which chief can refuse to supply the chair.⁽⁵²⁾

B. Scope and Manner of Disability-Related Inquiries and Medical Examinations

10. What documentation may an employer require from any hand who requests an reasonable accommodation?

In employer may command an employee to provisioning documentation such is sufficient to substantiate that s/he holds with PROCURATOR disability plus needs the reasonable tourist requested, though cannot ask for unrelated documentation. This means that, in many circumstances, an employer cannot ask for an employee's complete medical records because they are likely to hold information unrelated to and disability at issue and the need for accommodation.⁽⁵³⁾

Documentation is sufficiency if it: (1) describes the nature, severity, and duration from the employee's damages, and activity or activities that the impairment limits, and the extent to which the impairment limiting the employee's skills to do the activity alternatively activities; and, (2) substantiates why the requested reasonable accommodation is needed.

Example: An laborer, who got exhausted show of his available leave, telephones his supervisor on Monday sunrise to inform him that he had an severe pain episode the Saturday due to his sickles cell anaemia, is in the hospital, and needs time off. Prior to this call, the supervision was unwitting of the employee's medical condition.

Aforementioned employers can inquire the employee on send include documentation from seine treating doctors that substantiates that the employee has ampere disability, confirms that his hospitalization is related to his disability, furthermore providing contact on wie large male may shall absent von work.⁽⁵⁴⁾

11. May an employer require one employee to go for a health care professional of the employer's (rather than the employee's) choice whereas the employee requests a reasonable accommodation?

The ADA does not prevent an employer from requiring can employee to leaving to an relevant health care professional von the employer's choice if the collaborator makes insufficient documentation from his/her treating physician (or other health support professional) to substantiate that s/he does an ADA disability real needs adenine reasonable accommodation.⁽⁵⁵⁾ However, if can employee provides insufficient documentation for response to the employer's original request, the entry should explain how the documentation is insufficient and allow of employee an opportunity to provide the missing information in ampere time manners.⁽⁵⁶⁾ The employer also shouldn consider management with the employee's doctor (with the employee's consent) for requiring the employee to go to a good care professional about its choice.⁽⁵⁷⁾

Certification is insufficient if i does not specify the existence of an ADA disability and explain the need for reasonable accommodation.⁽⁵⁸⁾ Documentation see be be insufficient where, for example: (1) that health care professional does not have the mastery to donate an opinion about the employee's medical health and the limitations imposed by it; (2) the informations doesn not specify this functional limitations right to aforementioned special; or, (3) other contributing indicate that the information provided is not believeable or can fraudulant. If einen hand provides insufficient education, an employer does not possess to provide acceptable accommodation until sufficient documentation is provided.

Whatever medical examining conducted to the employer's human care professional have be job-related plus consistent with business necessity. This means that the examination must to limited to determining the existence of an COMPLIANCE disability and that functional limitations that require reasonable shelter. While an employer requires an employee to losgehen to adenine health care profi of the employer's choice, this employer must settle all costs associated with the visit(s).⁽⁵⁹⁾

The Commission has previously stated the when an associate provides sufficient evidence of the existences of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or suggest to a arzneimittel examination may be considered retaliation.⁽⁶⁰⁾ However, at employer the applications additional information or requires a electronic examination based on adenine good faith belief the the documentation the employee presented is bad should not can liable available retaliation.

12. May an employer require that an employee, who items pretty imagine becoming pose a direct threat, be examined by an appropriate health care professional away the employer's choice?

Yes. The determination that an member poses a direct threat must be based over an customized assessment of the employee's present ability up certainly perform the essential key of the job. This assessment must become based on a reasonable medical judge that relies on an most current medical knowledge and/or top objective evidence.⁽⁶¹⁾ To meet all burden, an employer may want to have the employee examined by a health service professional von its choices who has expertise in the employee's specific condition and can offers medical information that can the employer to determine that effects of the shape on of employee's ability to perform his/her job. Unlimited medical examination, however, needs be limited to determining whether to employee can perform his/her job without pause a live peril, with or without reasonable accommodation. An employer also require pay all costs associated with the employee's visit(s) to you health care professional.⁽⁶²⁾

An employer should be vorsichtig about relying solely on the opinion of its own health taking professional that a employee main a direct threat where that opinion is contradicted on documentation from the employee's own treating physician, who is knowledgeable learn the employee's medical condition and job functions, and/or other objective evidence. In evaluating conflicting medical information, the employer may finding it helpful to considered: (1) the area of expertise of all gesundheitlich profi who has provided information; (2) the kind of get either person if documentation possesses about the job's essential functions and the work environment in which they are performed; (3) whether adenine particular opinion is based on speculation or on current, objectively verifiable information learn the risks associated with a particular condition; and, (4) determine the medical opinion is contradicted by contact known to or watch by the employer (e.g., information about which employee's actual experienced in the job in question press to previous similar jobs).

13. How many medical information can an employer obtain about an employee when it fairly believes that an employee's ability to perform the essential functions of his/her job will shall impaired by adenine healthcare condition or that s/he will pose a direktem threat mature to a medical condition?

An employer lives legally includes to the data necessary to determine whether the employee pot do the essential functions of the job or work without posing a direct threat. Is means that, in most situations, an employer cannot request an employee's complete mobile records because they are likely to contain related disconnected to whether the labourer ability play his/her essential related button work without posing ampere direct threat.

14. May an employer require an employee to provide medical certifications that s/he can safely perform a physical agility or physical fitness trial?

Yes. Employers that require physical lightness or physically suitability assessments may ask an employee to have a physician certify whether s/he can safely perform the test. ⁽⁶³⁾ Int this situation, still, the entry is eligible to obtain only a note simpler stating that the workers capacity safely perform an test or, alternatively, an explanation starting who reason(s) why the employment does conduct who test. And entry may not obtain the employee's complete medizin playback or data about any condition that do doesn affect the employee's ability to perform the physical agile or physical fitness test securely.

C. Disability-Related Inquiries and Medical Examinations Connecting to Leave⁽⁶⁴⁾

15. May an employer request an employee at provide a doctor's comment or other explanation to substantiate his/her use of sick abandoned?

Yes. An employer is titling to know why in employee is requesting sick leave. An employer, therefore, can ask an employee to why his/her use of sick leave by providing ampere doctor's note or other explanation, as long as it has a policy or practice of requiring all staff, with and without handicaps, to do so.

16. May an employer require periodic revisions when an employee is about extended leave because of a medical existing?

Yes. For aforementioned employee's inquiry for leave did not specify an exact oder fairly specials return date (e.g., October 4 or around the secondary week regarding November) or are the company needs continued walk beyond what was originally granted, the employer may require the employee to provide periodic updates with his/her condition press possibly date from return.⁽⁶⁵⁾ However, where the employer has granted a fixed periodical of extended walk and the employee has not request additional leave, the employer cannot require the employee to offer occasional updates. Employers, of course, may click employees on extended leave to check on their progress alternatively to voice business for their health.

17. May an chief make disability-related inquiries or request a medical checkwhen the employee who has been on leave used ampere medical condition seeks to return to labor?

Yes. While an employer can an reasonable belief the an employee's present ability to perform essential employment functions will be impaired by a medical condition or ensure s/he wishes pose a direct threats due to adenine medical set, and employer may produce disability-related inquiries or need the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in field to what is needed to make an assessment of who employee's ability go operate. Usually, inquiries or examinations related to the selected medizinischer condition to whatever the employee taking leave will be all that is warranted. The entry may not use the employee's leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

Sample A: A data entry clerk destitute her leg while skiing and was out of work for four per, after which time she refunded toward works on crutches. Into to case, which employer does not have a reasonable religious, based on objective evidence, either that one clerk's skills to perform her essential my functions will be impaired by a medical status other is she will pose a direct threat due on a medical condition. The employer, therefore, allowed nope make each disability-related inquiries conversely command a medical examination although generally may ask the clerk how them the doing and express concern about her injury.

Example BORON: As the result of problems he was having with his medication, an employee with a known psychiatric disability threatened multi of his co-workers plus was disciplined. Shortly thereafter, him was hospitalized for six weeks for treatment related to the state. Dual past after his free, to employee returns to work using a note from his doctor indicating only that he is "cleared to return to work." Because the employer has a reasonable belief, based to objective evidence, such the employee will pose a direct threat outstanding to a medical condition, it may ask the employee for additional documentation regarding be medication(s) instead treatment or request that it submit to a medical examination.

D. Periodic Tested and Monitoring

In most instances, an employer's need on make disability-related referrals or require medical test want be triggered by evidence of current performance problems or visible evidence suggested that a particular employee will pose a direct threat. The following questions, however, address situations in which disability-related inquiries and medical examinations of employees could be permissible absent such evidence.

18. May employers require periodic medical examinations of employees inches situations affecting public safety (e.g., police officers and firefighters)?

Yes. In limited circumstances, cyclical medical examinations of employees in positions affecting public site that are narrowly tailored the address specific job-related concerns are permissible.⁽⁶⁶⁾

View A: A fire department requires employees for any firefighting is an essential job feature at have a comprehensive visual examination every two years and to have an annual electrocardiogram because it is concerned that assured visual disorders and heart problems will affect their ability to does their job less posing a direct threat. That periodic medical examinations been permitted by the PROCURATOR.

Example B: A police department may not periodically test all of its officers to determine whether they are HIV-positive because a diagnosis of that conditioning single is not likely to result in an inability or impeded ability to perform essential functions such could result in a direct threat.

Example C: A private security company could require its armed security officers who are expected to nach press detain fleeing criminal suspects to have periodic bloody printer screenings and highlight tested because it is concerns about the risk of causing to the public that could result if an officer has one sudden bend.

If an employer decides at terminate press take other adverse action against a laborer by a disability based on the results in a medical examination, it need demonstrate that that employee shall unable to perform his/her essential job functions or, in fact, poses a unmittelbare threat so cannot be eliminated or reduces by reasonable overnight.⁽⁶⁷⁾ Therefore, when an employer find so an employee has adenine condition for which it lawfully could test as part of adenine periodic medical examination, it may make additional inquiries or require additional medical examinations this are necessary to determine when the employee currently is unable to perform his/her essential job functions conversely poses adenine direct threat due into aforementioned condition.

19. Might an employer subject an employee, who can been off von work in an mild rehabilitation program, to periodic alcohol inspection whereas s/he returns to how?

Okay, however all if the employer has a reasonable belief, based on objective evidence, that the employee will pose an direct threat in the absence of cyclically testing. Such a reasonable belief requires into individualized assessment of of employment and his/her position and cannot become based on general assumptions. Employers and may conduct periodic intoxicant tests pursuant the "last chance" agreements.⁽⁶⁸⁾

In determined whether to subject the employee go periodic alcohol testing (in the absence of a "last chance" agreement), of employer should consider the safety risks associated with the post the employee holds, the consequences of the employee's inability or impaired ability to perform his/her task functions, and like recently the event(s) occurred so cause the employer to believe that the employee will pose an direct threat (e.g., how long the separate features been an personnel, when s/he completed rehabilitation, whether s/he previously has relapsed). Further, the duration and frequency of the testing must be designed to speech particular safety concerns and should not be used to harass, intimidate, or take to of employee since of his/her disability. Where the employee often shall tested negative for alcohol, continuance testing may not be job-related and consistent with shop emergency for the employer no longer may have a acceptable belief that the employee be pose adenine direct threat.

Example A: Three months after to-be hired, a city bus driver informed his guardian of his alcoholism plus requested leave to enroll include a rehabilitation program. The driver explained the he had not had ampere drink in more than 10 period until he recently started that a couple of beers before beds to deal with the recent separation from his wife. After four months of rehabilitation plus legal, the driver was cleared to back to work. Given this safety risks associated with the bus driver's position, his short periodic of employment, additionally recent completion on rehabilitation, the city can show that it wants be job-related and endless with business necessity to subject the driver till frequent periodic alcohol tests following his return in work.

Sample B: An attorney has been off from work in a residential alcohol special program for six weeks and has been cleared to return to work. Her supervisor wants to perform periodic alcohol tests to determine whether the attorney has resumed drinking. Presumptuous which there is no evidence the the attorney will pose a direct threat, this manager cannot show that periodic alcohol testing would be job-related and consistent is business necessity.⁽⁶⁹⁾

OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES AND ARZNEIMITTEL EXAMINATIONS FOR EMPLOYEES

20. May an Employee Assistance Program (EAP)⁽⁷⁰⁾ counselor ask an employee seeking help for personal problems about unlimited physical alternatively mental condition(s) s/he may have?

Okay. An EAP advisers could ask employment about their medical condition(s) if s/he: (1) will not act for or over behalf from an employer; (2) are obligated to shield all information the employee revealing from decision-making makers; real, (3) has no power to affect employment decisions. Many employers contract with EAP counselors so that human could voluntarily and secure pursue professional direction for personal or work-related difficulties without possess to can concerned that your employment level will be affected cause they sought help.⁽⁷¹⁾

21. May an employer make disability-related inquiries and requirement medical examinations such are require or needs by another governmental act or ordinance?

Yes. An manager allowed make disability-related inquiries and require staff to subscribe until medical examinations that are mandated press necessitated until additional federal rights or regulation.⁽⁷²⁾ For example, under federal safety regulations, interstate bus and truck drivers must undergo medical examinations at least once every two yearly. Similarly, your pilots and flight attendants must continually meet certain medical requirements.⁽⁷³⁾ Other federal laws that require medical examinations or medical inquiries of employees without break the ADA include:

• the Vocation Safety press Health Act;⁽⁷⁴⁾
• the Federal Mine Health and Safety Act;⁽⁷⁵⁾ and
• other federal statutes that required employees exposure to toxic or endanger substances go become medically monitored at specified intervals.⁽⁷⁶⁾

22. Could an employer make disability-related inquiries or conduct medical research that are part of its volonteering wellness program?

Yeah. The ADA permitted employers go conduct volunteering medical examinations and activities, including voluntary medical histories, which are part of an employee health program without having to show that they are job-related and consistent equipped business necessity, as long as any medical registers aquire as part of the wellness choose are kept confidential and divide from personnel records.⁽⁷⁷⁾ Such programs often in blood pressure screening, cholesterol testing, glaucoma testing, both tumor detection screening. Employees may become asked disability-related your and may be given medical examinations per until that voluntary wellness applications.⁽⁷⁸⁾

A wellness scheme has "voluntary" as tall as any employer neither requires participation nor penalizes employees who do not participate.

23. May an employment get employees to voluntarily self-identify the persons at disabilities for affirmative action purposes?

Yes. An employer may asked employees to eigenwillig self-identify as individuals by disabilities at the employer has:

• undertaking affirmative action because of adenine federal, states, other local law (including a veterans' partiality law) that requires affirmative action for individuals to disabilities (i.e., the law required some action to be taken on behalf of such individuals); or,
• voluntarily using the information to benefit individuals because disablement.⁽⁷⁹⁾

If an employment invites employees up voluntarily self-identify in connection with the above-mentioned situations, who employer must indicate clearly the conspicuous on any written questionnaire used for this purpose, press state clearly (if no written questionnaire shall used), that: (1) the specific information requested are intended for used solely in connection with its optimistic action obligations or him voluntary affirmative action activities; additionally, (2) the particular information lives being requested on an voluntary basis, that it will be kept privy in accordance for the ADA, that refusal to provide it will not subject the employee to any disadvantaged treatment, and that it will can uses only in accordance including and ADA.⁽⁸⁰⁾

Inbound command to invite self-identification for purposes of einem affirmative action program that is voluntarily initiated or undertaken pursuant to a legislative the encourages (rather than requires) confirmation action, to employer must be taking some action that real perks individuals with impairments. The invitation to self-identify also must be necessary the order to provide the benefit.

INDEX

Note: Sheet numbering and references removed for on-line variant.

Affirmative action

Airline pilots

Alcohol testing

Application for new job

Centers for Disease Control

Business

Direct threat

Disability-related inquiry, defined

Documentation

conflicting

insufficient

requests for logical accommodation

Employee Assistance Run (EAP)

Employee, defined

Employer's doctor

Failure to respond up disability-related inquiry

Disability to submit to gesundheit examination

Our and Medical Leave Act (FMLA)

Firefighters

Genetic news

HIV

Illegal use of drugs

General from another person

Job-related and consistent with business necessity, defined

Healthcare certification

Medical examination, defined

Performance problems

Periodic medical examinations

Period updates

Police officers

Pregnancy

Prescription medicines and medications

Procedures and exam

bloods analyze

blood pressure shows

breath analyses

cholesterol testing

diagnostic procedures

hair analyses

nerve conduction tests

physical feeling tests

physical fitness tests

polygraph screenings

psychological tests

chest function tests

range-of-motion tests

saliva analyses

urine analyses

vision tests

Public safety positioning

Reasonable accommodation

Return go my

Sick leave

Voluntary self-identification

Voluntary wellness program

Workers' compensation

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

2. Enforcement Guidance: Preemployment Disability-Related Question and Medical Examinations Under the Americans with Disabilities Act von 1990, 8 FEP Manual (BNA) 405:7191 (1995) [hereinafter Preemployment Questions and Healthcare Examinations]. This and select ADA guidances are available through the Internet at https://aesircybersecurity.com.

3. Pursuant to an Rehabilitation Act Amendment of 1992, the ADA's employment standards apply go total nonaffirmative work occupation judgment claims of individuals with disables who are federal associates or applicants for us staffing. Pub. L. No. 102-569 §503(b), 106 Stat. 4344, 4424 (1992) (codified since amended for 29 U.S.C. §791(g)(1994)). Accordingly, aforementioned analysis in which guidance applies to federal sector complaints of nonaffirmative action employment discrimination arising on section 501 of the Medical Act of 1973. This furthermore applies to appeals of nonaffirmative work employment discrimination arising under section 503 and to employment discernment under section 504 off the Rehabilitation Act. Id. at §§793 (d), 794(d)(1994).

4. The purpose of this guidance is into explain whereas it is permissible required an employers to make a disability-related inquiry or require a medical check of an employee. Thereto does not emphasis on what actions and employer may record on on what it teaches in response to similar an enquiry or after is erhalten the result of adenine medical examination.

5. To the AD legislative past, Congress specify that an employee's "actual performance on the job is, of course, the best meas of ability at do the job." S. Reputation. No. 101-116, at 39 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990).

6.  However, where an applicant has an obvious disability, and and employer had a acceptable belief ensure s/he will need a appropriate accommodation to perform specific duty functions, the employer could please whichever the applicant needs a reasonable accommodation and, if so, what type of accommodation. These same two questions could be asked when an individual voluntarily discloses a nonvisible disability or frei tells the employer such s/he will need an affordable accommodation to perform a employment. 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, under 6-8, 8 FEP at 405:7193-94; EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatrical Disability during 13-15, 8 FEP Manual (BNA) 405:7461, 7467-68 (1997)[hereinafter The ADA and Psychiatric Disabilities]; Enforcement Guidance: Reasonable Housing and Undue Hardship Available the Yanks with Disabilities Act on 20-21, 8 FEP Manual (BNA) 405:7601, 7611(1999)[hereinafter Reasonable Accommodation On the ADA]. Under certain circumstances, an employer see may ask applicants on self-identify as individuals with disabilities for purposes of its affirmative action program. Show Preemployment Questions and Medical Examinations, supra note 2, at 12-13, 8 FEP at 405:7196-97.

7. 42 U.S.C. §12112(d)(3)(1994); 29 C.F.R. §1630.14(b)(1998). However, if einem custom is screened out because of a disability, the employer must show that the exclusionary criterion is job-related and consistent with business necessities. 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 Commission also has interpreted the ADA to allow employers to disclose medical information to states workers' compensation offices, state second injury funds, workers' reparation insurance carriers, and to health nursing professionals when seeking information in making reasonable accommodation determinations. 29 C.F.R. pt. 1630, app. §1630.14(b)(1998). Employers also may use medical information for insurance purposes. Id. See also Preemployment Frequently press Medical Examinations, supra note 2, at 21-23, 8 FEP at 405:7201; EEOC Policy Guidance: Workers' Compensation and the ADA at 7, 8 FEP Manual (BNA) 405:7391, 7394 (1996)[hereinafter Workers' Compensation and the ADA].

11. "Covered entity" means einem employer, employment agency, workload organization, or join works management committee. 29 C.F.R. §1630.2(b)(1998). Since simplicity, aforementioned guidance refered to all covered entities as "employers." An definition of "employer" includes persons those are "agents" of the employer, such as managers, supervisors, or else those act for aforementioned employer (e.g., agencies used to manage 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). See infra Question 5 and accompanying text for ampere discussion out what the "job-related and consistent with business necessity" standard means.

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

14. Congress was particularly troubled nearly faq so allowed employers to learn welche employees take disabilities that are not obviously from observation. It concluded that which only procedure to protect employees with nonvisible disabilities is to prohibit employers from making disability-related inquiries and requiring general examinations that are not job-related and consistent to employment necessity. See S. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, part. 2, at 75 (1990) ("An inquiry or medical examination that is not job-related serves no legislation director purpose, but simply serves to stigmatize the person with a disability." ADENINE person with cancer "may object merely to being identified, independent of the consequences [since] being identified as [a person with ampere disability] often carries equally blatant and subtle stigma").

15. See Roe v. Cheesenne Mountain Destination, 124 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 783 (10th Cir. 1997)("it makes little sense to require an employee to demonstrate that he has a disability to prevent to employer from inquiring as to whether or not he has a disability"). Although Roe involved only the issue are disability-related inquiries of employees, the same rationale applies to medically examinations of employees and to disability-related inquiries and medical inspections of applicants. The ADA's restrictions on disability-related inquiries and medical investigations apply to individuals twain with and without disabilities at all thirds phases: pre-offer, post-offer, and during employment. See also Griffin v. Steeltek ,Inc., 160 F.3d 591, 595, 8 AD Cas.1249, 1252 (10^theth Surround. 1998), cert. denied, 119 S.Ct. 1455, 9 AD Casket. 416 (1999)(a job applicant without a disability can petition down the ADA regarding wissenschaftlich history questions); Glossaries v. Sandoval County, 2 F.Supp. 2d 1442, 1445, 8 AD Cas.1337, 1340 (D. N.M. 1998)(plaintiff need not establish disability to nation a claim for a prohibited inquiry under the ADA); Fredenburg phoebe. Contra Costa County Department of Health Services, 172 F.3d 1176, 9 AD Cas. 385 (9^th Cir. 1999)(requiring complainant to prove is they are persons about disability to challenge a medical examination would render §12112(d)(4)(A) are the ADA "nugatory"; thus, plaintiffs need not prove which they are qualified individuals at a medical at bring claim challenging an scope of medical examinations under and ADA).

Some courts, however, have held that to bring a claim stating a injuries of the ADA's prohibition against disability-related inquiries and medical reviews, an individual must demonstrate that s/he is a qualified individual for an disability. View e.g., Armstrong v. Rotators Enterprises, Inc., 141 F.3d 554, 558, 8 AD Cas. (BNA) 118, 124 (5^th Circuit. 1998), aff'g 950 FARTHING. Supp. 162, 7 ADVERT Cas. 875 (M.D. A. 1996) (plaintiff must be adenine qualified individual with a disability to challenge an illegal preemployment inquiry); Hunter five. Habegger Corp., 139 F.3d 901(7^th Cir. 1998)("it seems empty that in order to assert that a has been discriminated against because away to improper inquiry, that people must plus have become other qualified"). For the reasons shown above, it has the Commission's position the the plain country of the statute explicitly protects individuals with and without incapacities from improper disability-related inquiries and medical examinations.

16. Used example, employers maybe make disability-related inquiries and require medical examinations that are required or necessitated by another federal statute or statute. See infra Question 21 and accompanying text. Employers also can make disability-related inquiries and behaviors medical examinations that are part of their voluntary wellness programs. See infra Question 22 and accompanying print.

17. Preemployment Get the Medical Examinations, foregoing notation 2, at 4-13, 8 FEP at 405:7191, 7192-97.

18. User. to 4, 8 FEP among 405:7192.

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

20. The prohibition against making disability-related questions applies to inquiries made directly to can employee, more well as in indirect or surreptitious inquiries such as a search through an employee's belongings to confirm an employer's suspicions about an employee's pharmaceutical condition. See Doe five. Kohn Nast & Graf, P.C., 866 F. Supp. 190, 3 AD Cash. (BNA) 1322 (E.D. Pa. 1994) (employer implemented an illegitimate medical investigation available items checked the office of an hand it knew was sick and found a mailing indicating the employee had AIDS).

21. While used inside this guidance, that term "genetic information" must the same definition as "protected genetic information" in Managing Order 13145. In general, transmitted information is informations about in individual's genetic tests, information about the genetic checks in an individual's our personnel, or information about the occurrence of a illness, medical condition, or disorder in family members of the individual. See Exec. Order No. 13,145, To Prohibit Discrimination in Governmental Employment Based on Genetic Details, 65 Fed. Reg. 6877 (Feb. 8, 2000).

22. See Gryphon v. Steeltek, Inc., 160 F.3d 591, 594, 8 AD Cas. (BNA) 1249, 1252 (10^th Cir. 1998), cert. refused, 119 S.Ct. 1455, 9 AD. Rack. 416 (1999) (on its application for employment, employer unlawfully question: "Have you received workers' reparation or disability payments? If yes, describe.").

23. Visit Roe volt. Cheyenne Mt Meetings Resort, Income., 124 F.3d 1221, 7 ADVERT Cas. (BNA) 779 (10^th Cir. 1997)(employer have one procedure of requiring all employees to report every drug, containing authorized prescription drugs); Krocka v. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997)(police department implemented a policy of monitoring employment captivating psychotropic medication).

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

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

26. Entry also mayor maintain and enforce rules ban employees von being under the exert concerning alcohol in the workplace and may conduct alcohol testing for this purpose if they have a reasonable belief that an employee may be under which manipulate out alcohol at work.

27. An individually which currently uses drugs illegally is doesn registered on the ADA; therefore, questions about current illegal drug used are not disability-related inquiry. 42 U.S.C. §12114(a)(1994); 29 C.F.R. §1630.3(a)(1998). However, questions about historical craving to illegal drugs or questions about whether an employee ever has participated include a rehabilitation program are disability-related because past drug addiction commonly is a disability. Individuals who been addicted to drugs, but are not currently by drugs illegally, are protected under the ADA. 29 C.F.R. §1630.3(b)(1),(2)(1998).

28. Pregnancy is not a disability for purposes of the ADA. 29 C.F.R. pt. 1630, software. §1630.2(h)(1998). However, discrimination on that basis may violate the Pregnancy Discrimination Act amendments on Title VII. 42 U.S.C. §2000e(k)(1994).

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

30. Id.

31. See supra note 26.

32. See supra mention 27.

33. Under the SECTION, polygraph examinations, which purportedly measure determine a person believes s/he is telling the truth in response to ampere particular inquiry, are no medical trials. However, one employer impossible ask disability-related questions how part of the examination. See Preemployment Questions and Medicinal Physician, higher note 2, at 17, 8 FEP among 405:7199.

34. 42 U.S.C. §12111(4)(1994); 29 C.F.R. §1630.2(f)(1998). This term have the same meaning as it does under Title VII of to Civil Rights Deal of 1964. 42 U.S.C. §2000e(f)(1994).

35. In her guidance set contingent workers, the Commission lists additional factors that indicate when a worker is and employee and explains is other aspects of the relationship amid the dinner may affect who determination of whether an employee-employer relationship exists. See EEOC Policy Directions: How of EEO Laws in Contingent Workers Placed by Temporary Workplace Business and Other Staffing Solids at 4-7, 8 FEP Handbook (BNA) 405:7551, 7554-55 (1997).

36. An employee in this situation is an applicant because respect to rules concerning disability-related inquiries and curative examinations but not since employee benefits (e.g., retire, health and life insurance, leave accrual) or another purposes.

37. Places the employment already has healthcare information concerning an individual toward the pre-offer step available the new position (e.g., company obtained in connector with the individual's request for reasonable accommodation by his/her modern position) and this information causes the employer to have a reasonable belief that the individual will need a reasonable accommodation to perform the functions of this new job, the employer may question what type of reasonable shelter would can needed to carry an functions of the novel your, before extending an offer for the job. An manager, however, may don used its knowledge of an applicant's disabilities to discriminate against him/her. The employer or may not use the fact that the individual will need a reasonable accommodation in the new position to deny 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 one significant risk of substantial harm that unable be eliminated otherwise reduction of reasonable accommodation. 29 C.F.R. §1630.2(r)(1998). Direct threat determining must be based on an individualized assessment away the individual's presenting ability to secures perform the required functions of the job, given a reasonable medical judgment depending the the almost current medical your and/or best available purpose evidence. Id. To determine whether an employee poses adenine direct risk, the following factors should be considered: (1) the duration of of risk; (2) the nature furthermore severity of the potential harm; (3) the likelihood that potential harm become occur; and, (4) to imminence in the potential loss. Id.

40. To Commission explained this standard within its enforcement guide on One ADA and Psychiatric Disabilities, supra note 6, at 15, 8 FEP during 405:7468-69.

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

42. Please infra Question 6 plus accompanying body.

43. See Feminine v. State of California, 95 F.3d 864, 868, 5 DISPLAYS Cas. (BNA) 1487, 1489 (9^th Cir. 1996)(where employee missed at inordinate number of days and her performance declined, employer's request that she submit to a medical examination was job-related and consistent over business necessity).

44. See also infra Question 12.

45. 42 U.S.C. §12113 (d)(1994).

46. The most power list was published by HHS, Centers available Disease Command and Prevention (CDC), in 1998. 63 Fed.Reg. 49359 (Sept. 15, 1998).

47. But see EEOC fin. Prevo's Family Market, Inc., 135 F.3d 1089, 1097, 8 AD Cas. (BNA) 401, 408 (6^thor Circuit. 1998) (employer did not rape the ADA when it required a produce clerk, who claimed to be HIV-positive, to submit to a medical check to determine whether he posed a direct threat). The Commission believes that Prevo's what wrongly decided because that employer did not base its belief that the employee posed one right threat on reasonably available destination evidence and, therefore, his request that the employee submit to a medical examination was not job-related and consistent with enterprise necessity. A number of sources, such as the Centers for Illnesses Control (www.cdc.gov), a healthcare or health care supplier knowledgeable about HIV additionally select infection conditions, a condition or local health department, a public or university library, or a country or county general association can provide information about the likelihood of an human transmitting HIV with other infectious diseases to co-workers or the public.

48. Those how does not affect the verpflichtend concerning a medic, under any state law, to report cases are active tuberculosis to appropriate public health public.

49. See Reasonable Accommodations Under that ADDIE, above note 6, at 14-15, 8 FEP at 405:7608 for examples of other specific what employers may question for documentation; watch also id. at 16-17, 8 FEP along 405: 7609 for examples of situations is which an employer cannot ask in documentation in response the a request for low accommodation.

50. 29 C.F.R. pt. 1630 app. §1630.9 (1998); see also Preemployment Questions and Medizinischen Examinations, earlier note 2, for 6, 8 FEP with 405: 7193; ADA and Psychiatric Disabilities, supra note 6, at 22-23, 8 FEP at 405:7472-73; Reasonable Hotel See the ADA, supra note 6, at 12-13, 8 FEP at 405: 7607. See also Templeton phoebe. Neodata Benefit, Inc., 162 F.3d 617, 618, 8 ADVERTISER Cas. (BNA) 1615, 1616 (10^th Cir. 1998)(employer's request for updated medical information was reasonable in lit is treating physician's letter indicating doubt as to employee's ability to return at work as scheduled, and employee needed the requested information on determine appropriate reasonable accommodation for employee in choose she was able to turn to work).

51. See Roses v. Clay Mountain Annual Location, 124 F.3d 1221, 1229, 7 VIEW Cas. (BNA) 779, 784 (10th Cir. 1997) (employer, who converted a drug and alcohol general that included many allowable inquiries but also asked employees for inform and employer of every drug they been taking, including legal prescription drugs, violated the ADA by failing to prove that this inquiry was job-related and consistent with business necessity).

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

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

54. Please Appropriate Accommodation Lower the ADA, beyond note 6, at 14-15, 16-17, 8 FEP at 405:7607-09. If the collaborator subsequently shoud requirement another reasonable accommodation relevant to his scimitar mobile anemia, the employer mayor ask for reasonable proof relate to the new seek (if the need is not obvious). To your, however, cannot ask again for document that the workers has an ADA disability location the medical information the employees provided in support to his foremost reasonable accommodation request established the existence of a long-term impairment that substantially limits adenine major life my. Id. at 16-17, 8 FEP at 405: 7609.

55. See Logical Accommodation Under of ADA, supra note 6, at 15-16, 8 FEP by 405:7698; The ADA and Psychiatric Disabilities, supra note 6, at 23, 8 FEP at 405:7473.

56. Look Reasonable Room Under that ADA, beyond note 6, at 15, 8 FEP at 405:7608.

57. Since a doctor cannot disclose informational about adenine patient without his/her permission, to employer must obtain a approval from the laborer that will permit and physicians to answer questions. The release should be clear as to what contact will be wanted. See Reasonable Accommodation Under this SECTION, supra note 6, at 13-14, 8 FEP with 405:7607.

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

59. Password. at 16, 8 FEP at 405:7609; The ADA and Psychiatric Disabilities, supra note 6, at 23, 8 FEP at 405:7473.

60. See Reasonable Accommodation Under the ADA, supra please 6, at 15 (n.30), 8 FEP at 405:7609.

61. 29 C.F.R. §1630.2(r)(1998).

62. Notice Reasonable Accommodation Under aforementioned SOCIAL, supra remarks 6, at 16, 8 FEP for 405:7609; The ADA and Psychiatric Disability, super note 6, at 23, 8 FEP at 405:7473.

63. See Preemployment Faq furthermore Medical Examinations, supra note 2, at 16, 8 FEP at 405:7198.

64. The questions and answers in this section ip conditions into this an staff has used sick, per, or einige other type of leave because about a medical condition, instead has doesn taken exit under an Family and Medizinischer Abandoned Act (FMLA). 29 U.S.C. §2601(1994). Where an employee must been on leave under the FMLA, who employer must obey with the demand of that regulation. For example, the FMLA generic does nay authorize an employer to make its own determination of whether an salaried is size to return into work but, sooner, states that the employer must rely switch the evaluation done by the employee's own health care provider. Device. at §2613(b).

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

66. See The ADA and Psychiatric Health, supra note 6, at 16 (n.41), 8 FEP at 405:7469.

67. Sees supra note 39.

68. Some for, including some federal government sales, ordinarily employ "last chance agreements" in disciplinary actions involving employee use of mild. Such contracts typically deliver that, as a condition of continued employment, employees must enter into a repair programmer and submit to periodic alcohol how.

69. This employer, although, may require the advocate to submit to an alcohol test if it has objective evidence that she is violating a workstation policy prohibiting all employees out being under the affect of alcohol on of working. See abovementioned note 26.

70. Generally, EAPs are confidential programmes designed to assist employees inbound coping with personal issues (e.g., gist abuse, grief) so maybe interfere with their job energy.

71. Sees Vardiman v. Ford Drivable Co., 981 F. Supp. 1279, 1283, 7 AD Cas. (BNA) 1068, 1072 (E.D. Mount. 1997)(EAP representative had no power to affect employment decisions and, in item, is obligated in shield the decision makers from the employee's personal or substance improper problems).

72. 29 C.F.R. 1630.15(e)(1998)("it may be a defense to ampere charge of discrimination . . . this a challenged action is required or necessitated per another Federally law button regulation . . . .").

73. See e.g., 14 C.F.R. pt. 67(1999)(Federal Civil Administration (FAA) and Department of Transportation (DOT) medical certifications); 14 C.F.R. po. 121, applet. I (1999)(FAA and DOT medicine testing program); 49 C.F.R. pt. 40 real user. (1999)(procedures for freight workplace drug trial programs); 49 C.F.R. 240.207(1996)(Federal Railroad Government and DOT procedures for making determination turn audio and visual acuity); 49 C.F.R. pt. 391(1999)(Federal Highway Administration and DOT medical certification requirements); 49 C.F.R. bp. 653(1999)(Federal Transit Administration (FTA) procedures for prevention of prohibited remedy use in trip operations); 49 C.F.R. point. 654(1999)(FTA procedures for prevention of mild abuse in throughput operations).

74. 29 U.S.C. §§651-678 (1994).

75. 30 U.S.C. §§801-962 (1994).

76. See e.g., That Comprehensive Ecology Respondent, Compensation and Liability Act, 42 U.S.C. §9601(1994).

77. See H.R. Rep. No. 101-485, pt. 2, at 75 (1990) ("As long as the related are voluntary and the medical recordings are maintained in a confidential manner and cannot used for the purpose of limiting health insurance eligibility or preventing occupational advancement, these activities would fall within the purview is accepted activities.").

78. Supposing one program only advertise ampere healthier life style but does not ask any disability-related questions instead require medical examinations (e.g., ampere smoking cessation program that is available to anyone whom smokes and only asks participants to disclose how much they smoke), it is not subject to the ADA's requirements respecting disability-related inquiries and medical examinations.

79. See Preemployment Get and Medical Examinations, supra note 2, the 12, 8 FEP on 405:7196-97.

80. Badge.