Here are seven things that every employer should know.
The Americans with Disabilities Act has been law since 1992, and the rules regarding medical inquiries for applicants and employees have not changed much since that time. However, many employers are still confused about what they can and cannot do. These seven tips may make things easier.
No. 1: You can’t ask for medical information from applicants. Period. The most you can do at the applicant stage is ask something like, “Do you believe you can perform this position with or without a reasonable accommodation?” And the answer should be “Yes/No/Not Sure.” Do not follow up with a question about what, if any, reasonable accommodations the applicant will need. (But don’t worry – you will be able to get that information later.)
No. 2: You can ask a question of an applicant that could, conceivably, elicit an answer that discloses the applicant’s disability, as long as the question is not likely to have that effect. For example, you can ask, “How many days were you absent from work in the past year?” You can even request an explanation. That’s because employees miss work for all kinds of reasons having nothing to do with disabilities. And even if an applicant volunteers, “I missed 90 days this year because I was undergoing chemotherapy,” you still haven’t violated the ADA because your original question was not likely to elicit information about a disability.
On the other hand, it would violate the ADA for you to ask an applicant “How many days did you miss work in the past year because of illness?” Because this question focuses on medically-related absences, it is likely to elicit information about an applicant’s disability.
No. 3: Once you’ve made a conditional offer of employment to the applicant, you can ask just about anything, as long as you ask the same questions of every offeree in that job category. Post-offer is the stage where you can do it all (almost) — you can send everyone for a post-offer physical or psychological examination, ask them about any medical conditions they’ve ever had, test them for drugs or alcohol, ask about prior workers’ compensation injuries, ask them whether they need reasonable accommodations, etc., etc.
If the post-offer medical examination indicates that the offeree has a condition that might require accommodation or might disqualify the offeree from working at the job, you can send just that one offeree for individualized follow-up assessment as appropriate. We’ll call this “phase 2” of the post-offer medical examination. Any “phase 2” medical examination should be limited to the job-related medical condition. For example, if “phase 1” revealed that the offeree had a bad back, “phase 2” should be limited to the bad back — determining what the back problem is, how severe it is, whether the offeree can perform the job with that condition, and whether the employer can make reasonable accommodations that would allow the offeree to perform the job. If the “phase 2” examination goes beyond that narrow scope — for example, if it’s a complete physical — then it violates the ADA.
CAUTION: With all post-offer medical examinations, be sure that you comply with the Genetic Information Nondiscrimination Act. Under the GINA, your physicians should not be doing DNA testing, obtaining other genetic information, or even asking offerees for their family medical history. Be sure that the paperwork you give to the doctor contains the GINA “safe harbor” language, which can give you a defense if the doctor slips up and asks the offeree how many people in her family have died of heart attacks. Here’s the language:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Copy and paste to your heart’s content!
No. 4: A drug test isn’t technically a “medical examination” under the ADA. Who knew? For that reason, a drug test can theoretically be performed at any time. There’s only one problem: a good drug test will have to include questions about lawful medications the applicant (or employee) is taking that might affect the results of the test. The questions about lawful medications are a “medical examination” for ADA purposes. That’s why employers postpone drug tests until the post-offer stage.
Alcohol testing is always a “medical examination” for ADA purposes and must always comply with all ADA requirements.
No. 5: Once your offerees begin employment, you can no longer require any kind of “preventive” medical examinations. You can make medical inquiries and require medical examinations of current employees only if the inquiries or exams are “job-related and consistent with business necessity.” (You can also require medical examinations if they are required by another federal law, or in conjunction with a voluntary wellness program.)
Generally, this means that you can’t make medical inquiries of current employees unless you become aware that a particular employee has a job-related issue that may be due to a medical condition. In that case, you can talk with the employee about the issue, and you can send the employee for assessment to his or her own doctor, or even to a doctor of your own choosing.
Even though questions about lawful medications are considered a “medical examination” under the ADA, it is all right to require employees to be tested randomly for illegal drug use. To avoid an ADA issue, you can either have a Medical Review Officer obtain the information about legal medications and withhold that information from the company, or you can postpone the questions about legal medications until after an employee tests positive (and not ask at all if the employee tests negative).
If you choose the MRO option, then the MRO should be instructed to tell the company only that the employee tested “negative” or “confirmed positive.” If the employee tests positive but the MRO determines that legal medications could have caused the result, then the MRO should communicate to the company only that the employee tested “negative.”
Alcohol testing of current employees can only be done “for cause” (including post-accident) unless random testing is required by another federal law.
No. 6: Speaking of which, watch out for those other federal “requirements”! If you are governed by another federal law, such as Department of Transportation regulations, or OSHA requirements, then you can comply with those, even if they conflict with your general ADA obligations. But be careful because these other federal laws aren’t always as “strict” as we think. Also, beware if you’re trying to go “beyond compliance.” For example, you might think it would be a good idea to require machine operators to comply with DOT “preventive” medical examination requirements. The only problem is that DOT regulations don’t apply to machine operators, which means that DOT requirements will not be a defense to your ADA violation. Also, beware of “industry standards” that aren’t actually required by federal law. Industry standards are great, but they do not trump the ADA.
No. 7: If a medical examination of a current employee is job-related and consistent with business necessity, then you can send the employee to a physician (or other medical professional) of your choice. It’s a good idea to start with the employee’s doctor, and if his or her opinion seems legitimate, then go with it. But if you have reason to question the doctor’s opinion, then you have the right to choose an appropriate specialist and send the employee to that doctor for further assessment. It can even be a doctor with whom your company already has a relationship.
Of course, it has to be at your expense.
If your doctor’s opinion is different from the opinion of the employee’s doctor, you can follow the recommendations of your doctor. There is no “second/third opinion” procedure under the ADA, as there is when determining whether an employee can take leave under the Family and Medical Leave Act.
Once you get the information you need from the physicians, you have to engage in the interactive process with the employee and attempt to make reasonable accommodations. But those are topics for another day.