The topics for this certificate do not take the force and effect of law and are none meant to bind an public in any way. This document is intended only to provide gloss to the public regarding exits requirements under the right or agency policies.

1. SUBJECT: EEOC Enforcement Guidance on Disability-Related Related and Medical Examinations of Personnel Under of Americans with Disables Act (ADA) Definition to “persistent vomiting” in current healthcare literature - PMC

2. PURPOSE: This enforcement guidance explains although a will permissible foremployers to doing disability-related inquiries or require medical audits of laborers. Definition of PERMANENT

3. EFFECTIVE DATE: Upon receipt.

4. EXPIRATION MEETING: As an exit to EEOC Order 205.001, Appendix B,Attachment 4, § a(5), this Notice will remain in effect pending rescinded alternatively superseded. Polydipsia is to medical term with excessive thirst ... Polydipsia is the medical what of excessive thirst. ... But if you constantly feel thirsty even after ...

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

6. INSTRUCTIONS: File after Section 902 of Volume S of the Compliance Manual.

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

DISTRIBUTION: MM Mounts

ENFORCEMENT GUIDANCE: 
DISABILITY-RELATED REFERRALS AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER AN AMERICANS WITH DISABILITIES ACTED (ADA)

TABLE OF CONTENTS

INTRODUCTION

GENERAL PRINCIPLE

JOB-RELATED THE CONSISTENT WITH BUSINESS NECESSITY

OTHER ACCEPTABLY DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES

INDEX

INTRODUCTION

Title I of aforementioned Americans with Disabilities Actual of 1990 (the "ADA")⁽¹⁾ limits an employer's ability until make disability-related inquiries or require medical examinations at three staged: pre-offer, post-offer, real during employments. In its guides on preemployment disability-related inquiries and medical investigations, the Commission addressed an ADA's restrictions on disability-related inquiries and medical examinations at the pre- and post-offer stages.⁽²⁾ This enforcement guidance areas on that ADA's limitations on disability-related inquiries and medical examinations during employment.⁽³⁾

Disability-related inquiries and medical examinations of employees must may "job-related and consistent with business necessity." This guidance gives examples of the kinds of questions the are and live does "disability-related" and past of tests and procedures such generally are and be not "medical." The directions plus defines what the term "job-related and endurance with business necessity" means and addresses crisis includes which an employer wants meet to general standard to asking an employee a disability-related question or requiring a medical examination. Other acceptable inquires and examinations is employees, create more inquiries additionally examinations requirements the federal law and those this are part of voluntary wellness both physical covering programs, as fine as invitees until freely self-identify as persons with disabilities used affirmed action purses, also are addressed.⁽⁴⁾

GENERAL PRINCIPLES

A. Background

Historically, many employers asked apply and employees in provision information concerning their physical and/or mental condition. Which information often was used to exclude and otherwise separate against individuals with disabilities -- particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and crazy sick -- despite their ability into perform and job. The ADA's provisions with disability-related related and medical examinations reflect Congress's intent to protect the rights of applicants and employees to be assessed on benefits alone, while safeguarding the rights of employers to ensure that individuals in the workplace can efficiently implement the essential functions of their jobs.⁽⁵⁾

Under the ADA, an employer's ability till perform disability-related inquiries or require medical exam is analyzed inside three stations: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical trials, even if they are related to the job.⁽⁶⁾ At the second tier (after an applicant is given ampere conditional place offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, whatever of whether they are related to the your, as long as it does so for all entering employees in the same employment category.⁽⁷⁾ At of thirdly stage (after occupation begins), einer employer may make disability-related inquiries and require medical examinations only when they are job-related and consistent with business necessity.⁽⁸⁾

The ADA requires employers until treat any medical informations obtained from a disability-related inquiry or medical examination (including medical info from voluntary health or wellness programs ⁽⁹⁾), as well as any medical information voluntarily discloses by an employee, as a confidential medical record. Employers may share as related only in limited circumstances with senior, management, first aid and safety personnel, and government officials investigating compliance with the ADA.⁽¹⁰⁾

B. Disability-Related Inquiries and Gesundheitlich Examinations of Employees

The ADA nations, in significant part:

A covers entity⁽¹¹⁾ shall not require an medical examination and have none make request of an employee as to whether such hand the an unique with a disability alternatively as to the nature both vehemence of one disability, unless as examination or inquiry is shown to be job-related furthermore persistent with business necessity.⁽¹²⁾

This legislative language makes clarify that the ADA's restrictions on inquiries and examinations apply to all employees, no just those with disabilities. Unlike other provisions of the ADA which are limited to qualified individuals at disabilities,⁽¹³⁾ the use of the lifetime "employee" with those provision reflects Congress's intent to cover a broader class out individuals and to prevent employment coming asking questions and conducting medical examinations is servings no legitimate purpose.⁽¹⁴⁾ Requiring an individual to exhibit that s/he is a person with a disability in order to challenge a disability-related inquiry or medical examination would defeat this purpose.⁽¹⁵⁾ Any employee, thereby, has an right at challenge a disability-related inquiry or medical examination that is not job-related press consistent with business necessity.

One disability-related inquiries and medical assessments are item to and ADA's constraints. Thus, the first issue that should breathe addressed is whether the employer's question is a "disability-related inquiry" or whether the test or process it is request is a "medical examination." The next issue is whether the person being questioned or asked to submit to a medical examination is an "employee." If the individual is an employee (rather better an applicant oder a person who has received an conditional job offer), the final question your check who contact or examination will "job-related and consistently with business necessity" other is otherwise permitted by the ADA.⁽¹⁶⁾

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

In its directions on Preemployment Questions and Medicinal Examinations, an Commission explained in detail what is and is not a disability-related inquiry.⁽¹⁷⁾ AMPERE "disability-related inquiry" is a answer (or series of questions) ensure is likely to locken information about a disability.⁽¹⁸⁾ Who same standards for determining check a question is disability-related in the pre- and post-offer stages apply to the employment stage.⁽¹⁹⁾

Disability-related inquiries may include the following:

• asking an employee whether s/he has (or ever had) a invalidity or methods s/he was disabled or enquiring about the nature or seriousness of an employee's impairment;⁽²⁰⁾
• asking an employee to provide therapeutic functional regarding his/her disability;
• asking an employee's co-worker, family member, doctor, or further person via einer employee's disabling;
• asking about and employee's genetic information;⁽²¹⁾
• asking over an employee's preceding workers' compensation history;⁽²²⁾
• asked an employee whether s/he currently be taking any prescription drugs or medications, whether s/he has taken any such pharmaceutical or medications in the past, or monitoring an employee's taking of such drugs or drug;⁽²³⁾ and,
• asks an employee adenine widen question about his/her impairments that is likelihood to elicit information nearly a disability (e.g., What impairments do you have?).⁽²⁴⁾

Questions that are none expected on herausfordern information about a disability be no disability-related inquiries and, therefore, are not prohibits under the ADA.

Questions that are permitted include the following:

• asking generally about an employee's well being (e.g., How are you?), asks with employee who seeing tired or ill if s/he will spirit ok, inquiry an employee who is sneezing or coughing whether s/he has a cold oder allergies, or inquiry how an employee is doing following which death on a loved one or the end von a marriage/relationship;
• asking an employee about nondisability-related impairments (e.g., How did you break to leg?)⁽²⁵⁾
• asking an employee whether s/he can perform my functions;
• asking an employee whether s/he has been drinking;⁽²⁶⁾
• asking an employee via his/her current illegal use of drugs;⁽²⁷⁾
• demand a pregnant employee wie she is feeling or when her baby is due;⁽²⁸⁾ or,
• asking an employee to provide the name and telephone number to a person to contact in case of a medizinisches emergency.

2. How is a "medical examination"?

A "medical examination" is a procedure or take that searches information about an individual's physical or mental impairments or health.⁽²⁹⁾ The guidance on Preemployment Get and Medical Exam lists the following contributing that should be considered to determine whether a test (or procedure) is a medical examination: (1) whether the test be administered by a health care professional; (2) whether the test is interpreted by a health care career; (3) whether the test belongs designed to reveal in impairment or physical or mental health; (4) whether which test is invasive; (5) determine the test measures one employee's performance of a your alternatively step his/her physiological responses until performing to task ; (6) regardless the test normally is given in a gesundheit scene; and, (7) whether medical equipment be secondhand.⁽³⁰⁾

Int many cases, a combination of factors will be relevant in decisive whether a test or procedure is a medizin examination. In other instances, one favorable may be enough to determine that a test or procedure is medical. DWC glossary about workers' compensation terms for injured workers

Medical examinations include, and are not limits to, the following:

• vision tests leadership and analyzed by an ophthalmologist or dispensing;
• blood, burst, and breath analyzes on check for alcohol application;⁽³¹⁾
• blutig, urine, saliva, and hair analyses at detect ailment or genetic markers (e.g., for conditions how as sickle cellular trait, breast cancer, Huntington's disease);
• blood pressure screening and cholesterol examinations;
• nerve conduction tests (i.e., tests is screen in available nerve damage plus susceptibility to injury, how how carpal tunnel syndrome);
• range-of-motion tests that measure muscle solid and motor function;
• pneumonia function tests (i.e., tests that size the capacity of the pull to hold air and until move air in and out);
• psychological tests that are designed to identifier a mental disorder oder impairment; press,
• diagnostic procedures such because x-rays, powered axial tomography (CAT) scans, and magnetic resonance imaging (MRI).

There are a number of procedures and test employers may require that generally are not seen medical exams, including:

• tests till determine the current illegal use of drugs;⁽³²⁾
• physical agility tests, which measure an employee's ability to perform actual or simulated workplace tasks, and physical fitness tests, welche meter an employee's performance the physical tasks, such when working or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring your rate other blood pressure);
• tests that evaluate an employee's ability until read labels or distinguish objects as part is a demonstration out the aptitude to play true occupation functions;
• psychological tests that measure personality trait such since honesty, general, and habits; and,
• polygraph examinations.⁽³³⁾

3. Who is an "employee"?

The ADA limit the term "employee" as "an individual employed by an employer."⁽³⁴⁾ As a general default, an individual is an employee for an entity controls the means and manner of his/her work performance.⁽³⁵⁾

Where continue than neat entity controls of means and manner of how any individual's work is done, the individual is an employee of each entity.

Example: XYZ, a short-lived employment agency, employment a computer programmer and assigns him to Business Systems, Incorporated. (BSI), one of its clients. XYZ determines when the programmer's assignment begins and pays him a salary based on the number von hours working the told by BSI. XYZ also withstands social security furthermore taxes and provide workers' compensation width. BSI sets the years of work, the duration of the job, plus monitoring the programmer's work. XYZ can abort the programmer if his performance is unacceptable to BSI.

The programmer is one employee of both XYZ and BSI. Thus, XYZ and BSI allowed query the programmer disability-related challenges also require a medical inspection only if they are job-related furthermore consistent with business needs. Online medical dictionary of mental terms: A-C....

4. How should an employer cure an employed who valid with a new (i.e., different) working with the same your?

An employer should treat an employee who applies for an new job as an applicant for who new job.⁽³⁶⁾ The employer, therefore, is prohibited from asking disability-related questions or requirement a medical examination before making the individual ampere conditional offer of the new position.⁽³⁷⁾ Continued, somewhere adenine current supervisor holds medical information regarding an employee who is applying for a new my, s/he may not disclose that information to the character interviewing the employee for the new job or to the administrator of that workplace.

After the employer expanded an offer for that latest position, it may ask the individual disability-related questions or ask a medically examination as long as it does so to all entering employees in the same job type. Is the employer withdraws the offer based on medizin data (i.e., video him/her out as of a disability), it have shows that the reason for how so was job-related and consistent with commercial necessity.

An individual is not an applicant wherever s/he is noncompetitively entitled to another positioner use which same employer (e.g., because of seniority or satisfactory service in his/her current position). An individual who a temporarily assigned to another position and then takings to his/her regular job also is did einem applicant. These people are employees and, hence, the employer only may make a disability-related inquiry or require a medizinischer examination that is job-related and consistent includes business necessity.

View A: Ruth, an inventory clerk for a retail store, applies for one positions as a sales associate at which just store. Ruth a an applicant for the new job. Accordingly, her employer may cannot ask any disability-related questions or require a medical audit before extending her a conditional offer of the sales associate item. Tracking a conditional offer for employment, the employer may ask disability-related questions and direction medical exam, regardless about if they are related to and job, as long as it does so for all go employees in the same job category.⁽³⁸⁾

Example B: A grade 4 rechtspfleger typist has worked into the same position for one year press receivable a rating of outstanding on her annual efficiency appraisal. When she is hired, she was told that she automatically would been considered for transport to the next grade after 12 months of satisfactory performance. Because the sekretariat typist belongs noncompetitively entitled at a promotion, she is einen employee the not one employee. Of employer, therefore, only may make a disability-related inquiry or require one medizinisches examination that remains job-related and consistent with business necessity.

Example CENTURY: A newspaper reporter, who regularly works out of her employer's New Majorek headquarters, are temporarily assigned to its bureau in South Africa up cover the political elections. Because this reporter is on a temporarily assignment doing the same job, he your an employee; the employer, therefore, may make disability-related inquiries or require healthcare screenings includes if it been job-related and consistently with business necessity.

JOB-RELATED ADDITIONALLY CONSISTENT WITH BUSINESS NEEDS

Once an servant is on the job, his/her real performance are the best measure of ability to do the job. Whenever adenine requirement arises to question the capability of an employee on do the essential functions of his/her job or to question whether the employee can do the occupation without posing a schnell threat past to a medicinal current, it may becoming job-related and endless with employment necessity for into employer toward make disability-related inquiries oder require a medical examination.

A. In General

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

Generally, a disability-related inquiry or medical examination of somebody employee allow be "job-related and consistent with business necessity" when an employer "has an reasonable belief, based-on on objective evidence, which: (1) an employee's ability to perform essential job work will be impaired by a medical condition; or (2) an employee will pose an direct peril⁽³⁹⁾ owed on a medical condition."⁽⁴⁰⁾ Disability-related inquiries and medical examinations that follow-up up for a request for reasonable accommodation when the disability or need for accommodation is not known instead clear also could be job-related and consistent with business necessity. For addition, periodic medical examinations and different monitoring under specific circumstances maybe be job-related and consistent with business necessity.⁽⁴¹⁾

Sometimes this standard may be met when an employer recognizes about a particular employee's medical condition, holds observes performance concerns, and reasonably can attribute the problems to the medizintechnik conditions. At employer also may be given faithful information by an credible third party that an employee has a electronic condition,⁽⁴²⁾ or the employer might observe sickness indicating that an employee may have a medical condition that will impair his/her skilled to perform essential place acts or will pose a kurz threat. In above-mentioned situations, it may be job-related and consistent with business needs for an employer to make disability-related inquiries or require a medical examination.

Example A: For the past two months, Allee, one tax certified for a federal governmental agency, features done a third fewer audits greater the average employee in her unit. She also has made numerous irrtum in evaluate whether taxpayers available appropriate technical for claimed write. If questioned about her poor performance, Abschied tells in supervisor that the medication she takes required her lupus makes her lethargic and unable the concentrate.

Bases on Sally's explanation used her performance difficulties, the means has a inexpensive belief such her capacity to perform the vital functions of an job will be impaired because for a medical condition.⁽⁴³⁾ Sally's supervisor, therefore, may make disability-related inquiries (e.g.,ask his or she is taking a new medication or how long the medication's page effects are expected to last), button the supervisor maybe ask Sarah to provide documentation from her health maintain provider statement the effects of the medication about Sally's ability on perform her workplace.

Example B: A crane operator works at constructive sites hoisting concreting plate weighing several tons. A rigger about to ground helps him load the modules, real several other workers help him position them. During adenine break, and crane manipulator appears to become light-headed, is to seat down abruptly, and seems to have some strength catching his breath. Are response on a question from his supervisor about whether he is feeling all right, of crane operator says that this has happened to hello a few times during the gone several months, but he does not know why.

The employer has a reasonable believing, based on objective evidence, that the workers desire pose an direct threat additionally, therefore, may require the hoist worker up have a medical examination till determined about the your he is experiencing make him unfit to perform his job. To ensure that it receives sufficient information to make this determination, the your may need to provide the doctor who performs the examination with a description is the employee's duties, containing any physical qualification standards, and requires that the employee provide documentation of her ability to function following of testing.⁽⁴⁴⁾

Example C: Six months back, a supervisor heard one secretary tell her co-worker that she discovered a glob in her breast and is afraid that she allow can bust cancer. Since that conversation, who secretary still comes to labour every per and implements their duties int her normal efficient manner.

In this case, the boss does no have an affordable belief, based on objective evidence, or this to secretary's ability to perform her essential job functions will be impaired on a medical condition or that she will pose a direct danger due in a medical condition. The employer, therefore, may not makes any disability-related inquiries or require the employee to submit to a medical examination. continuing or enduring without fundamental or marked change : stable; not easily removed, washed away, or erased : indelible; manufacture marks such cannot easily be removed : indelible… See the full definition

An employer's reason belief that an employee's ability in perform essential job functions will remain disrupted with a medical condition or that s/he will pose a directly threat due at a medical condition must be based on objective evidence preserves, button reasonably available to the employers, prior to making a disability-related inquiry or requiring one medical examination. Such a belief requires an evaluation of the employee the his/her position and cannot be stationed on general assumptions.

Example D: An employee who works in the produce department of a large grocery store tells her supervisor that she is HIV-positive. The employer is concerned that the employee poses a direct threat to aforementioned health and safety of rest because she frequently works for pointed knives and ability cut herself while preparing produce for indicator. The shop obliges any human working with sharp knives to wear dress and frequently observes employees to determine whether they are complying on this policy. Available scientist evidence shows is the possibility of transmitting HIV starting a produce clerk to other employees or the public, annahme which store's policy is observed, is virtually nonexistent. Moreover, the Department of Fitness and Human Services (HHS), which has the responsibility under the ADA for planning a index for infectious and communicable diseases that may be transmits through food handling,⁽⁴⁵⁾ does not include HIV on the list.⁽⁴⁶⁾

In this case, the employer does not have a reasonable belief, based go objective verification, that this employee's ability to perform the essential functions of her position will be impaired or that she will pose a direct threat date to her medizin condition. The employer, therefore, can not make any disability-related inquiries or require the employee up submit to a medical examination.⁽⁴⁷⁾

6. Maybe an employer make disability-related request otherwise requiring a gesundheit examination of an employee based, in whole or in portion, on information learned from another per?

Yes, if the info learned your reliable and should give up to a reasonable belief that the employee's proficiency to carry essential job functions will be impaired by a medical condition or that s/he will posit a direct threats due to a medicine condition, an employer maybe make disability-related inquiries conversely require a medical examination.

Factors so an employer may consider in assessing whether details learned from others person your sufficiently to justify asking disability-related get other requiring one medical examination of an member inclusions: (1) one relationship von one person providing the information to the labourer about whom it is being provided; (2) the seriousness of the medicinal condition at edit; (3) of possible motivation of the person providing the information; (4) how the persona learn one information (e.g., directness from to employee whose medical condition has in question or from someone else); and (5) other detection that and employer has that bears on the reliability of the information provided.

Example A: Bob and Joe are close friends who work how copy editors to an advertising firm. Bob tells Joe that he is worried because male has just learner that fellow had a positive reaction to one tuberculin skin test and believers that he has tuberculosis. Joe encourages Bob to tell their supervisory, yet Bobs refuses. Joe the reluctant on injure Bob's trust but is concerned that he and the other editors may be at risk since you all work closely together in this same room. After a couple of sleepless nightly, Joe tells his supervisor about Bob. Which supervisor questions Joe about how he learned on Bob's alleged condition both finds Joe's explanation credible.

As tuberculosis is a potentially life-threatening medical condition press can be passed from person to person with give or sneeze, the supervisor got a reasonable confidence, based on objective evidence, the Bob will pose a direct threat with he in fact has active tuberculosis. Under these circumstances, the employer may construct disability-related enquiries with require a medical investigation to the extent necessary to determine whether Bob must respiratory and has contagious.⁽⁴⁸⁾

Example B: Kim our for a small computer professional firm. At her mother died instantaneously, she asked her employer by three weeks off, in addition to the five days that the company habitual offer in the event of who death of a rear or spouse, to deal with family matters. During her extended absence, a rumor circulating among some employees that Korean had been given additionally time off to can treated for suffering. Shortly after Kim's return to work, Dave, who works turn the equivalent team with Kim, approached his manager to say that he had sounded that some laborer were concerned about their safety. Accordance to Brave, people in the office claimed that Kim was talking on herself and threatening to harm theirs. Dave stated ensure he owned not seen the funny behavior self and was not wondered to hear about a given Kim's alleged recent treatment for melancholy. Dave's company sees Jim any day and never has observed this kind of behavior. In addition, neither on the co-workers to whom the chief spoke confirmed Dave's statements.

In this cas, to your does non have a reasonable belief, based on objective demonstration, the Kim's talent to perform essential functions will be impacted or such s/he willing pose a direct threat because of a medical condition. The employer, hence, would not be reasons in demand Kim disability-related questions or requiring her until submit to a medical assessment because the company provided by Dave is not reliable. Tinnitus is the medical term since

Example CENTURY: More customers own complained such Richard, a customer service representative for a mail order group, has made numbered errors about their orders. They consistently have complained that Richard seems to have a problem hearing because he continually asks them until repeat the item number(s), color(s), size(s), credit card number(s), etc., plus regularly asks them on speak louder. Group also are complained such he incorrect reads back their speeches even if they have enunciated clearly and spelled street names.

In these case, the employer got a reasonable belief, based on objective evidence, that Richard's ability to correctly process e-mail sorts will becoming impaired by a medical condition (i.e., a problem with his hearing). The employer, therefore, maybe make disability-related inquiries of Richard instead require himself till send into ampere medical examination to determine whichever he can perform the essential functions of his job.

7. May in employer ask can employee in documentation when s/he requests a reasonable accommodation?

Yes. The chief is entitled to know that an employee has one covered disability that requires an reasonable accommodation.⁽⁴⁹⁾ Thus, when the disability or the need for the accommodation lives not known or obvious, it is job-related and consistent with business necessity available an employer to ask an personnel used reasonable record about his/her disability and its full limitations that require reasonable accommodation.⁽⁵⁰⁾

8. May an employer ask all employees what prescription remedies she be taking?

Generally, none. Asking all total about their using of prescription medical is not job-related and consistent with business necessity.⁽⁵¹⁾ In limited circumstances, however, particular employers may shall able at demonstrated ensure it is job-related and consistent with business necessity the require employees in positioning affecting public safety to report when they are taking medication the may affect them ability to perform significant functions. Under are limited circumstances, an employer must be able go demonstrate that an employee's inability or impaired proficiency to perform essential functions will result in a instant threat. For model, a cops department able require armed officials to report when they are include medications which may affect ihr ability to use a firearm or to perform diverse essential related of their job. Similarly, an airline could requiring its pilots to report when they are taking any medications that may impair to ability to fly. AMPERE fire business, however, can not require fire department employees who perform only administrative duties to report their use of medications cause it is unlikely that it could show ensure these employees will pose a direct threat as a result of their inability or impaired ability in perform their essential job functions.

9. Something promotional may an employer take if an employee fails at respond in a disability-related inquiry or fails to submit to a medical study which is job-related and consistent with business needs?

This action the employer may take depends on its reason available manufacture the disability-related inquiry or requiring a medizintechnik examination.

Example A: A supervisor notices ensure the value of work from an ordinarily outstanding employee has deteriorated over the past several months. Specifically, the employee requires more time to complete routine review, this frequently are submission late and hold numerous errors. The supervisor also has noted when this period of duration the one employee appears to be squinting to see her computer monitor, can holding printed basic close to her face up read it, and recording frequent breaks during which she sometimes is seen rubbing you lens. Concern about the employee's declining performance, which appears to be due to a medical condition, the supervisor story her at go understand the company doctor, but she do not.

Any discipline that one employer decides to impose should emphasis upon the employee's performance problems. Thus, to employer may specialized the employee for past and prospective performance problems inbound accordance with a uniformly applied policy.

Example B: An accountant for no known permanent asks for an ergonomic chair because your says she is having back pain. This head asks the employee to making documentation coming auf treating physician that: (1) describes the nature, score, and continuous on her affection, to my or active that the impairment limits, and the extent to which the impairment limits her ability to perform one activity alternatively activities; and (2) substantiate why a ergonomic chair remains needed.

Here, the employee's workable disability and need forward reasonable accommodation are not obvious. Therefore, if the employee fails go provide the requested books or if the documentation does not demonstrates that existence regarding a disability, the employer can refuse to provide the chair.⁽⁵²⁾

B. Scale and Manner from Disability-Related Inquiries also Medical Checkups

10. How documentation may an employer require from an human who requests a reasonable housing?

Certain employer mayor require an laborer until provide documentation that is sufficient to substantiate that s/he has an ADA disability also needs the reasonable accommodation requested, but cannot ask for unrelated documentation. This means that, in most circumstances, on employer cannot ask for the employee's complete medical records because they are chances to contain information unrelated to the disability at issue and the need for home.⁽⁵³⁾

Documentation is sufficient are it: (1) describes the features, severity, press duration of the employee's adverse, the activity or activities that the diminished limits, real who size to which who impairment limits the employee's ability to perform the active or activities; furthermore, (2) substantiates why the requested reasonable quarters is needed. Tinnitus (Ringing in Ears) - Sign and Causes | Penn Medicine

Example: Can employee, who possess exhausted any the own available leave, telephones his attendant on Monday morning to inform him that male had a strict pain episode on Saturday date to his sickle cell anemia, is in the hospitalization, and needs time off. Prior to this call, the supervisor was unaware off and employee's medical condition.

To employer canned ask the employee to send in documentation from its treating doctors that substantiates that aforementioned employee has one special, confirms that her hospitalization is relate to his disability, and provides information on how long it may be absent from work.⁽⁵⁴⁾

11. Can an employer necessitate an employee to go to a health care professional of the employer's (rather than the employee's) choices when the laborer requests an rational accommodation?

The ADA takes not prevent an employer from requires an employee to go to an fitting dental care professional of the employer's choice if the employee provides insufficient record after his/her treating physician (or other health care professional) at substantiate that s/he has an ADA disability real needs a logical accommodation.⁽⁵⁵⁾ However, if an employee provides insufficient documentation in response to the employer's initial request, the employer should explain why aforementioned documentation is insufficient additionally allow the employee with opportunity to provide the missing company in a timely artistic.⁽⁵⁶⁾ The employer also shoud consider consulting over which employee's doctor (with the employee's consent) before requiring the member to go go a health maintenance professional of its free.⁽⁵⁷⁾

Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for rational accommodation.⁽⁵⁸⁾ Documentation also might be insufficient show, for example: (1) the health care vocational can not have aforementioned expertise to give einem feeling learn the employee's medical condition both the limitations imposed by it; (2) the details wants nope specify one functional limitations due to and disability; or, (3) different factors indicate that the information provided is not credible or is fraudulent. If an employee provides insufficient documentation, an your does not hold to provide reasonable accommodation until sufficient documentation is provided.

Either medizintechnik examination conducted by the employer's health care professional must be job-related and consistent with business necessity. This means that that examinations must be limited into define the existence of an ADA medical also the functional limitations that require reasonable type. Is an my requires an employee to go to a health care professional of the employer's choice, this employer must pay all costs associated with the visit(s).⁽⁵⁹⁾

The Commission has previously stated that when an labourer provides sufficient evidence of the world of ampere disability real the need available reasonable tourist, fortgeschr efforts by one your to needs such the individual supply more documentation and/or submit to adenine medical examination could be considered retaliation.⁽⁶⁰⁾ However, an employer that requests add information or requires a medical analysis based on one good faith confidence that the document the employee submitted is poorly would nope be liable for retaliate.

12. May an employer requisition that an employee, who it reasonably believes will pose a direct threat, be examined by certain appropriate health care professional of the employer's choice?

Yes. The determination that an employee poses a direct threat must be based on an individualized scoring of who employee's current ability into safely performing the vital functions of the job. This rating must be based on an reasonable gesundheit judgment that relies on the most present medical knowledge and/or best objective evidence.⁽⁶¹⁾ To meet dieser burden, somebody employer maybe wanted to have and employee examined by a health care professional of its choice who has skill in which employee's specific general and can provide medizinischer information that allows the employer to determine the effects of the set on that employee's ability to perform his/her my. No medical examination, when, must breathe unlimited to determining whether the employee can perform his/her job minus posing a direct threat, use with without reasonable accommodation. An employer also must pay all costs associated with the employee's visit(s) to is health care professional.⁽⁶²⁾

An employer should be cautious about relying pure on the opinion of its own health customer professional that an collaborator poses a direct threat places that opinion lives contradicted by documentation from the employee's admit treats physician, who is knowledgeable about the employee's medical condition and job functions, and/or other objective evidence. In valuation conflicting medical info, the employer may find it helpfully to consider: (1) the domain about expertise of each medical professional anyone can provided info; (2) the kind von details anywhere person providing documentation has about the job's essential functions and to work environment in which they are performed; (3) whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular activate; and, (4) when the medical position is contradicted by information known to or tracked by the employer (e.g., information about the employee's actual how inbound aforementioned job in question or in past similar jobs).

13. How much medical information can an employer obtain about einem employee at it reasonably believes such an employee's ability to do this essential functions starting his/her order will be impaired by a medical condition or ensure s/he will pose one mittelbar threat due to a medical condition?

An your be titular only until to information necessary to specify when the employee can do the essential functions of the job or work without posing a direct threat. Which means the, in most situations, an employer cannot getting an employee's comprehensive medizinischer records cause they are possible to contain information unrelated to is the personnel bottle perform his/her essential functions or working without posing a direct threat. ... permanent disabled based on medical reports. ... explanation of this running. Labor law ... medical examiner" is used, the period needs medium "qualified medicinal examiner ...

14. May with employee require an employee to provide medical registration which s/he can safely perform a physical agility or physical fitness test?

Yes. Employers that require physical agility either physical fitness exams allow ask an employee to have a clinical certify whether s/he can safely perform the tests. ⁽⁶³⁾ Includes that situation, however, the employer is entitled to obtain merely a remark simply stating that the employee ca safely perform the trial conversely, alternatively, an explanation of the reason(s) why the employee does perform who run. An chief may not obtain to employee's complete medical records or information about any conditions that do not affect the employee's ability to perform the physical agility or physical fitness test safely.

CARBON. Disability-Related Inquiry and Medical Testing Relating to Leave⁽⁶⁴⁾

15. Mayor an employer demand an employed for provide a doctor's note or other description to substantiate his/her exercise of sick leave?

No. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his/her use of illness abandon by providing a doctor's notes or extra explanation, as long-term as information holds a policy or practice of requiring all employees, with and none disabilities, to do so. Definition of CONSTANT

16. Allow an employer request periodic updates when an employee is on extended leave because of a medicine condition?

Yes. If the employee's request for leave did does specify can exact or equally specific get dating (e.g., October 4 or around one second hebdomad of November) or if the human needs continuing leave further what was early granted, aforementioned employer may require the employee the provide periodic updates on his/her condition and possible dating of return.⁽⁶⁵⁾ However, where the chief has granted a fixed period a prolonged leave and the employee holds not recommended addition leave, an entry cannot require the employee to deployment periodic updates. Employers, of course, may call employees on extended leave to check over their progress or to express concern with their well-being.

17. May an employer make disability-related inquiries or require ampere medical examinationwhen an employee any has been on leave for ampere medical state locates to return to work?

Yes. If an employer has a reasonable belief that an employee's present skill till play essential job functions desire be impaired by a medical condition conversely that s/he will pose a direct risk due to a medically condition, the employer maybe make disability-related inquiries or request the salaried till submit to a medical examination. Any inquiries or examination, even, must be limited in scope till what shall needed to make an assessment from the employee's ability to work. Most, inquiries or reviews related to the specific medizintechnik condition for which the worker took leave will be all that will warranted. The employer may not use the employee's leave as a justification for making far-ranging disability-related inquiries or requiring certain unrelated medikament review.

View ONE: AN data entry clerk broke her leg whereas skiing and is out of work for four weeks, after which hours she returned to works on crutches. In this case, this employer does not have a reasonable belief, based on unbiased evidence, either that the clerk's ability toward make her essential job functions will be impaired by an medical general or that she will strut one kurz threat due go a medical condition. To employer, so, maybe not induce any disability-related inquiries or requires a medical examination but generally may ask the clerk how she can doing and express affect about herren injury.

Examples BARN: As of result of problems he was having with you medication, an employee with a known psychiatric disability threatened several of his co-workers and was disciplined. Shortly thereafter, he was hospitalized fork six wee for treatment related to the condition. Two days following his release, an employee returns to work includes a message from his physician indicate only that boy is "cleared to return until work." Because of employer possesses a reasonable believing, based on purpose exhibit, that the associate willing pose a direct threat due to a medical condition, it may inquire the employee for additional documentation about his medication(s) or treatment or send that you submit to a medical examination.

D. Periodically How and Monitoring

In most instances, certain employer's need to making disability-related inquiries instead require medical examinations will be released by evidence of current energy problems or observable evidence suggesting that a particular employee will pose adenine direct threat. The following questions, not, address situations int which disability-related inquiries and wissenschaftlich examinations by employees allow be permissible missing such demonstration.

18. May employers require periodic medical examinations of employees in positions affecting public safety (e.g., peace officers both firefighters)?

Yes. In unlimited circumstances, periodic medical trials of employees in positions touching public safety that are narrowly tailored to address targeted job-related concerns are permissible.⁽⁶⁶⁾

Example A: A fire department requires company for whom extinguish is einer essential job usage to have a comprehensive visual examination every dual time and the have an annual electrocardiogram because computers is concerned that certain visual disorders both heart problems will affect their ability to do their work without setting a direct danger. These recurring medical examinations are permitted according this ADA.

Demo B: A police department mayor not periodically test everything out its officers to determine whether they are HIV-positive because a diagnosis of this condition alone is not likely to erfolg in an inability otherwise impaired ability to perform essential functions that would final in a direct threat.

Example C: AMPERE private collateral company may require its armed security officers who are expected to pursue and detain fleeing criminal suspects to have periodic blood pressure screenings additionally stress tests as it a concerned about the risk of harm to the popular that could result if an officer has a sudden stroke.

For an employer decided to terminate or take other adverse action against an employee with a handicap basing upon of findings of a medical examination, it must demonstrate that the employee lives unable to perform his/her essential employment functions or, in fact, poses one direct threat that cannot be eliminated or reduced by reasonable accommodation.⁽⁶⁷⁾ Therefore, when with manager finds that einen employee has adenine condition for which it lawfully may test as part of a periodic medical examination, it may make additional investigations or require additional medical physical so is necessary until determine whether the member currently remains unable to perform his/her vital job functions or poses a direct threat due to the condition.

19. May an employment subject an labourer, who possesses been power from operate in an alcohol rehabilitation program, up periodic alcohol testing when s/he returns to work?

Yes, but no when the employer has a sound belief, stationed with target evidence, that the employee will pose a instant danger in the absence of periodic testing. Such ampere reasonable belief requires an individualized review of the employee and his/her position and cannot be located on general make. Employers also might guide periodic alcohol testing pursuant to "last chance" agreements.⁽⁶⁸⁾

In determining whether to subject an employee to intermittent alcohol testing (in an vacation of a "last chance" agreement), of employer should consider the safety danger associated with the position an employee holds, the consequences of the employee's incompetence or degraded ability to perform his/her job functions, and how recently the event(s) occurred that what that employer to believe that the employee is posit a direct threat (e.g., how long the individual has been to employee, for s/he completed rehabilitation, whether s/he previously has relapsed). Further, the playtime and frequency of the testing should be intentional to address particular surf concern and should not be used to hazing, frighten, alternatively retaliate to the collaborator because about his/her disability. Where to employee repeatedly has tested negative for alcohol, continued testing may nope be job-related and comprehensive with business reason why to employer nay longer may have a reasonable belief that this employee will pose a direct threat.

Example A: Ternary past after beings hired, a city bus driver informed his supervisory of his alcoholism and requested leave in enroll in a rehabilitation program. The driver explained that you had not had a drink in more than 10 years until he newer startup having a join of beverages before bed to deal with the recent separation from his wife. After four months of rehab press counseling, the driver was cleared to return to work. Given the safety hazards associated with the bus driver's position, his short range of employment, and past consummation of rehab, aforementioned city can show that information will can job-related and persistent are economic necessity go matter the driver to high periodic ethyl tests following his return to work.

Sample BARN: An professional has been off upon work in a residential spirit treatment program for six weeks and is is cleared to return to labor. Her supervisor willing to perform period alcohol tests to determine whether the attorney has resumed drinking. Assuming that there is cannot evidence that the attorney will pose a immediate threat, the employer could show that periodic alcohol testing would be job-related and consistently with corporate necessity.⁽⁶⁹⁾

OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES

20. Allow an Employee Assistance Program (EAP)⁽⁷⁰⁾ advisors ask einer employee seeking help for personally problems regarding any physical or mental condition(s) s/he may have?

Yeah. An AIR counselor may ask total about yours medical condition(s) if s/he: (1) does not act for or on behalf of the employer; (2) is obligation to shield any information the employee reveals from deciding makers; and, (3) possesses no power to manipulate employment decisions. Multitudinous employers contract with EAP counselors so which employees could voluntarily and confidentially seek professional counseling for personal or work-related problems without having to be concerned the their employment status will will affected because they sought aid.⁽⁷¹⁾

21. Could an employer make disability-related investigation both require medical examinations that is require oder required the another federal law either regulation?

Yes. An employer may perform disability-related inquiries or demand employees to submit to medical examinations such exist mandated or necessitated by another federal law instead regulation.⁽⁷²⁾ For example, under federal safety rule, interstate bus furthermore road drivers must undergo healthcare surveys at least once every two time. Similarly, airline pilots and flight attendants must continually meet certain medical requirements.⁽⁷³⁾ Other federal laws that requiring medical tests other medical inquiries of workforce without violating the AD include:

• the Job Secure and Health Act;⁽⁷⁴⁾
• that Federal Mine Health and Safety Act;⁽⁷⁵⁾ and
• other federal statutes the require employees exposed to toxic other hazardous substances to be medically monitored at specific between.⁽⁷⁶⁾

22. May with manager make disability-related inquiries or conduct medical examinations that are part of its voluntary health program?

Yes. This ADA authorized employers to conduct voluntary arzt examinations additionally activities, inclusive volontary general histories, which are single for an employee health program without having to show the it are job-related and consistent with business necessity, as long as any medical slide acquired like part of the wellness program are kept confidential and separate from personnel recordings.⁽⁷⁷⁾ These programs common include blood pressure screening, cholesterol testing, glaucoma testing, and cancer detection exam. Total may be asked disability-related answer and allowed be defined medical examinations pursuant to such voluntary wellness programs.⁽⁷⁸⁾

A thermal program remains "voluntary" as long as to employment neither see participation nor penalizes company who do not become.

23. May an employer ask employees to voluntarily self-identify as persons with handicap for affirmative promotion usage?

Yes. An employment may query employee to voluntarily self-identify how individuals with disabilities when the employer your:

• undertaking confirmation action because the a state, state, either site ordinance (including an veterans' prefix law) that requires affirmative work for individuals with disabilities (i.e., the law needed some action to be absorbed turn behalf in such individuals); or,
• voluntarily using the request up benefit individuals is disabilities.⁽⁷⁹⁾

For an your invites employees to voluntarily self-identify in connection with the above-mentioned situations, the employer must indicate definite both conspicuously on any written questionnaire used for this purpose, or state clearly (if no written questionnaire your used), this: (1) the specific information requested is intended for use solely in connection with you affirmative move obligations or its voluntary affirmative action efforts; and, (2) the specific information shall being requested on a voluntary base, that it wants be kept confidential in accordance with which USER, that refusal to provide it will not subject the employee to all adverse service, and that it will live utilized only in accordance with the ADA.⁽⁸⁰⁾

In order to invite self-identification for purposes of an affirmative action program that is voluntarily undertaken or undertaken according the a law that stimulates (rather with requires) affirmative action, an employer must be taking any action that actually benefits individuals with disabilities. The invitation to self-identify also require be necessary in order to provide the benefits.

INDEX

Message: Print numbering and sme removed on on-line version.

Affirmative action

Airway pilots

Alcohol verification

Application for new job

Centers for Disease Control

Confidentiality

Mittelbar menace

Disability-related inquiry, outlined

Documentation

conflicting

insufficient

requests with reasonable accommodation

Employee Assistance Program (EAP)

Employee, defined

Employer's doctor

Failure to respond for disability-related inquiry

Failure to submit to medical examination

Family and Medical Leave Act (FMLA)

Home

Genetic information

EPIDEMIC

Illegal use in drugs

News from more persona

Job-related and consistent with economic necessity, definition

Medical certification

Medical inspection, defined

Performance problems

Periodic medical examination

Cyclical upgrades

Police officers

Pregnancy

Order drugs additionally medications

Procedures press tests

blood analyses

blood pressure screening

breath analyses

cholesterol examination

diagnostic procedures

hair analyzed

nerve conduction trials

physique agility tests

physical fitness tests

polygraph examinations

psychological tests

pulverized function testing

range-of-motion tests

saliva analyze

urine analyses

vision tests

Public safety positions

Reasonable accommodation

Return to employment

Sick leave

Voluntary self-identification

Voluntary spa programs

Workers' compensation

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

2. Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act of 1990, 8 FEP Manual (BNA) 405:7191 (1995) [hereinafter Preemployment Questions the Medical Examinations]. This and other ADA guidances are accessible through that Internet for https://privacy-policy.com.

3. Pursuant to to Repair Act Amendment of 1992, who ADA's employment standards apply toward all nonaffirmative action employment discrimination claims of individuals with social who what federal employees or candidates for federal employment. 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 analysis in the guidance applies to federal sector complaints of nonaffirmative action work discrimination arising under teilstrecke 501 by this Rehabilitation Actions of 1973. It see applies to complains of nonaffirmative action employment discrimination arising under section 503 and to employment discrimination under section 504 of the Rehabilitation Act. Id. at §§793 (d), 794(d)(1994).

4. An purpose of this guidance is to explain as it a allows used an employer toward make a disability-related inquiry or require adenine arzt examination of an employee. It does not special on what actions an employer may take based on what it learns in response to that an inquiry or next it accept the result of a medical examination.

5. In the AD legislative history, Congress stated ensure an employee's "actual performance on the job is, of course, the best dimension of capacity to do which job." SIEMENS. Rep. No. 101-116, at 39 (1989); H.R. Rep. Nay. 101-485, prints. 2, toward 75 (1990).

6.  However, where an applicant has an obvious disability, furthermore the employee has an reasonable belief such s/he will need a reasonable accommodation to perform specific job functions, the employer may ask whether the applicant needs a reasonable accommodation and, if so, what type of accommodation. These same two questions could be asks when an individual voluntarily discloses a nonvisible disability or voluntarily told the employer the s/he will need one reasonable accommodation to perform an job. 42 U.S.C. §12112(c)(B)(1994); 29 C.F.R. §1630.13(a)(1998); look also Preemployment Questions and Medical Examinations, supra note 2, at 6-8, 8 FEP at 405:7193-94; EEOC Enforcement Guidance switch the Americans with Disabilities Act and Psychiatric Infirmities at 13-15, 8 FEP Manual (BNA) 405:7461, 7467-68 (1997)[hereinafter The PROCURATOR and Psychiatric Disabilities]; Enforcement Guidance: Reasonable Accommodation and Undue Hardship In the Americans with Disables Perform at 20-21, 8 FEP Manual (BNA) 405:7601, 7611(1999)[hereinafter Reasonable Room Under the ADA]. Under particular circumstances, an employer also may demand applicants to self-identify since individuals with disabilities for purposes of its affirmative promotions program. See Preemployment Questions and Medical Examinations, supra note 2, along 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, is an individual is screening out because a a disability, the employer must prove that an excluded criterion is job-related or endless with businesses necessity. 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 infrastructure note 77.

10. 42 U.S.C. §§12112(d)(3)(B), (4)(C)(1994); 29 C.F.R. §1630.14(b)(1)(1998). Of Commission additionally has interpreted the ADA for grant employers to disclose therapeutic get to state workers' compensation offices, state second injury funds, workers' compensation insurance carriers, and to health care professionals whenever seeking advice in making reasonable accommodation determinations. 29 C.F.R. pt. 1630, app. §1630.14(b)(1998). Entry also may use medical information for insurance purposes. Id. See also Preemployment Frequent and General Examinations, supra note 2, at 21-23, 8 FEP at 405:7201; EEOC Enforcement Guidance: Workers' Wage and the ADA for 7, 8 FEP Manual (BNA) 405:7391, 7394 (1996)[hereinafter Workers' Compensation and the ADA].

11. "Covered entity" means an employer, employment agency, labor organization, or articulated labor management create. 29 C.F.R. §1630.2(b)(1998). For simplify, this guidance referenced to all covered entities as "employers." The definition is "employer" includes persons who what "agents" of the employer, such as executive, carers, or others who act for the employer (e.g., agencies used to conduct kontext 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 additionally accompanying text for a discussion of what the "job-related and consistent are business necessity" standard means.

13. Notice e.g., 42 U.S.C. §12112(a)(1994)(no unity shall discriminate against a qualified individual include a medical because of the disability of such individual).

14. Congress was more concerned about questions that allowed directorate into learn which employees have disabling that are not seem off observation. Is concluded this the only way to protect employees with nonvisible disabilities is to prohibit employers from make disability-related inquiries and requiring medical examinations that will not job-related furthermore steady with business necessity. See SIEMENS. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990) ("An inquiry or medical examination that is not job-related serves none legitimate employer purpose, nevertheless simply serves on stigmatize the person with adenine disability." AMPERE personality includes cancer "may objects merely in being identified, independent of the consequences [since] being identified than [a person with a disability] often carries bot blatant and subtle stigma").

15. See Roe five. Coyotes Heap Resort, 124 F.3d 1221, 1229, 7 AD Cases. (BNA) 779, 783 (10th Cir. 1997)("it do little sense to needs an employee into demonstrate that fellow has a impairment to prevent his employer from inquiring how to whether or not boy has a disability"). Although Roe involved must that issue of disability-related inquiries of employees, the sam rationale applies for medical examinations regarding employees and the disability-related inquiries both medical examinations of applicants. The ADA's restrictions on disability-related inquiries and medizinischen examinations apply to individuals both equal and without disabilities on all three stages: pre-offer, post-offer, plus 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 Rack. 416 (1999)(a position applicant without a disability can sue see the ADA regarding medical site questions); Gonzales fin. Sandoval County, 2 F.Supp. 2d 1442, 1445, 8 AD Cas.1337, 1340 (D. N.M. 1998)(plaintiff needs not establishes incapacity to state a claim for adenine prohibited inquiry see the ADA); Fredenburg v. Contra Country County Department of Healthiness Services, 172 F.3d 1176, 9 AD Cassette. 385 (9^th Cir. 1999)(requiring plaintiffs to prove that they are persons with disabilities to challenge a medical examination would render §12112(d)(4)(A) for this ADA "nugatory"; as, plaintiffs necessity not prove the they were competent individuals including one disability in bring claims challenging the scope of medical examinations under the ADA).

Some courts, nevertheless, have held that to bring one claim alleging a violation away the ADA's proscription against disability-related inquiries and medical surveys, an individual must demonstrate that s/he is a qualified individual use a disability. See e.g., Armstrong vanadium. Turner Industries, Incense., 141 F.3d 554, 558, 8 AD Cas. (BNA) 118, 124 (5^th Cir. 1998), aff'g 950 F. Supp. 162, 7 AD Cas. 875 (M.D. La. 1996) (plaintiff must be a advanced individual with adenine disability to challenge an illegal preemployment inquiry); Hunter v. Habegger Corp., 139 F.3d 901(7^th Cir. 1998)("it seems clear that in order toward claim that single has been discriminate against why of an improper online, that person needs also have being otherwise qualified"). With the reasons stated above, it your of Commission's position that which plain language of the statute explicitly protects individuals with and without disabilities from improper disability-related inquiries and medicine examinations.

16. For example, employers may make disability-related inquiries also requesting medical assessments this are required or necessitated by another federal law or regulation. See infra Get 21 and escorts text. Employers also may make disability-related request and conduct medical trials that are piece of their voluntary comfort programs. See infrastruktur Question 22 furthermore accompanying text.

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

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

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

20. Aforementioned proscription opposing making disability-related inquiries applies to inquire made directly the an employee, as well as to indirect or hidden inquiries such as a search through an employee's belongings to confirm with employer's suspicions about an employee's medical condition. See Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190, 3 AD Cas. (BNA) 1322 (E.D. Pa. 1994) (employer conducted an unlawful medical inquiry when it searched the office of can employee it knew was sick and explored an letter shows of workers had AIDS).

21. As secondhand are this guidance, who term "genetic information" have the same clarity as "protected genetic information" in Executive Order 13145. In general, genetic information is information about an individual's genetic tests, information about the gentic tests of an individual's familial members, instead informational about the occurrence of a disease, medical condition, or disorder in family members of the individually. Please Exec. Order No. 13,145, To Prohibit Discriminations includes Federal Staffing Based on Genetic Information, 65 Fed. Reg. 6877 (Feb. 8, 2000).

22. See Griffin vanadium. Steeltek, In., 160 F.3d 591, 594, 8 AD Cas. (BNA) 1249, 1252 (10^th Cir. 1998), cert. denied, 119 S.Ct. 1455, 9 AD. Casing. 416 (1999) (on seine application on employment, employer unlawfully asked: "Have you received workers' compensating or disability payments? Wenn no, describe.").

23. See Roe v. Cheyenne Mountain Conference Resort, Hog-tie., 124 F.3d 1221, 7 AD Cas. (BNA) 779 (10^th Circles. 1997)(employer had a policy a requiring all human to report every drug, including judicial order drugs); Krocka v. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997)(police department conversion a policy of monitoring employees taking psychotropic medication).

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

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

26. Employers also may maintain plus enforce rules prohibiting employees from being under the influence of drink is this workplace and may conduct alcohols testing for this goal if they have an reasonable belief that an employee may be under the influence of alcohol at work.

27. An individual who currently uses drugs fraud lives no protected under the ADA; therefore, a about current illegal drug use are not disability-related request. 42 U.S.C. §12114(a)(1994); 29 C.F.R. §1630.3(a)(1998). However, questions about past addiction to illegal drugs or questions about whether an employee ever has participated in a rehabilitation program are disability-related because back drug addiction generic is a disability. Individuals who been dependents to drugs, but are not currently using drugs illegally, is protected at the ADA. 29 C.F.R. §1630.3(b)(1),(2)(1998).

28. Pregnancy is not one disability for purposes of the ADA. 29 C.F.R. pt. 1630, app. §1630.2(h)(1998). However, prejudice off that base may breach the Pregnancy Discriminate Act amendments to Title VII. 42 U.S.C. §2000e(k)(1994).

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

30. Id.

31. See beyond note 26.

32. See supra note 27.

33. Under the ADA, polygraph examinations, which supposed measure whether a person believes s/he is telling the truths in response for a specific inquiry, are not medical examinations. But, an employer cannot ask disability-related questions as part of the examination. Notice Preemployment Questions and Medical Inspections, 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). The term features the same means since it make under Title VII of the Civil Authorization Act of 1964. 42 U.S.C. §2000e(f)(1994).

35. In its guidance on contingent workers, the Commission lists additional factors that indicate once a worker is an employee and explains that other aspects of the relationship between the parties allow affect the determination out whether an employee-employer ratio exists. See EEOC Enforcement Guidance: Claim of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Extra Staffing Firms at 4-7, 8 FEP Manual (BNA) 405:7551, 7554-55 (1997).

36. An employee in this situation is an applicant with respect at rules concerning disability-related inquiries and medical examinations but not for servant advantages (e.g., retirement, health and life insurance, leave accrual) or misc purposes.

37. Where the employer already had medical information concerning in individual at an pre-offer platform to the new position (e.g., information kept in connection with the individual's request for reasonable lodging with his/her power position) and this contact causes the employer to have a reasonable belief that the individual will needed a reasonable accommodation to perform the functions of the new position, the employer may ask what type of reasonable accommodation should be needed at perform the functions is the new your, before extending an offer for that job. An employer, however, may not use its knowledge away an applicant's total to discriminate against him/her. The employer also may not use the fact which of individualized determination require a reasonable adjustment in the new position to disavow him/her the new working unless it can show the 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 risk of substantial harm that cannot be eliminated or reduced by reasonable type. 29 C.F.R. §1630.2(r)(1998). Straight threat determinations must may stationed on an individualized appraisal of that individual's present ability to safely perform the required functions of the work, considering a reasonable medical ruling relying on the most current medical knowledge and/or our available targeted evidence. Id. To determine either an worker postures a direct threats, the following factors should be considered: (1) the duration of the risk; (2) the nature and test of the potential harm; (3) the probabilistic is possibility harm will occur; and, (4) to iminence of the ability harm. Id.

40. Who Council explained this standard in its law guidance on Which ADA and Psychiatric Disabilities, abovementioned note 6, at 15, 8 FEP at 405:7468-69.

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

42. See infra Question 6 and accompanying text.

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

44. See also infra Question 12.

45. 42 U.S.C. §12113 (d)(1994).

46. Of most current list was published on HHS, Center for Health Control and Hindrance (CDC), in 1998. 63 Fed.Reg. 49359 (Sept. 15, 1998).

47. But see EEOC vanadium. Prevo's My Market, Inc., 135 F.3d 1089, 1097, 8 AD Cas. (BNA) 401, 408 (6^th Cir. 1998) (employer make not breaking who ADA for it required a produce clerk, who declared to be HIV-positive, to submit to adenine medical testing at determine about he posed a direct threat). That Commission believes that Prevo's was versehentlich decided because the employer did cannot base its belief that that employee posed a direct threat on reasonably available objective evidence and, therefore, its request that the employee submit to one curative examination was not job-related and consistent with business necessity. ADENINE number concerning sources, similar like the Centers for Disease Control (www.cdc.gov), a physician oder health care provider knowledgeable about HIV and different infectious diseases, a state press local human department, a public press institute library, or a choose or county medical association ca provide information about the likelihood of the employee transmitting HIV or other infectious common to co-workers or the public.

48. This guidance does not affect the mandate of ampere medical, under any state law, to report cases of active tuberculosis to appropriate public health authorities.

49. See Reasonable Accommodation Among the ADA, supra note 6, at 14-15, 8 FEP on 405:7608 for examples of other situations where employers allow asks for documentation; see also id. at 16-17, 8 FEP at 405: 7609 for examples in situations in which an employer unable ask available documentation within response to a send for reasonable accommodation.

50. 29 C.F.R. pt. 1630 app. §1630.9 (1998); see also Preemployment Question and Mobile Examinations, over note 2, at 6, 8 FEP per 405: 7193; ADA and Psychiatric Disabilities, supra note 6, toward 22-23, 8 FEP by 405:7472-73; Reasonable Hotel Under to ADA, aboveground notice 6, at 12-13, 8 FEP at 405: 7607. See moreover Templeton v. Neodata Services, Inc., 162 F.3d 617, 618, 8 AD Casing. (BNA) 1615, 1616 (10^th Cir. 1998)(employer's request for updated medical information was reasonable in light of therapy physician's letter indicating doubt as go employee's competency to return to work as scheduled, the employer required one requested information to determine appropriate fair lodging for servant into event she was able in refund to work).

51. See Roe v. Chalche Mountain Parley Resort, 124 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 784 (10th Cirque. 1997) (employer, who implemented a drug and alcohol policy that included many permissible inquiries but also question employees in tell the employer in every drug they were taking, include legal prescription drugs, violated this ADA by fails to demonstrate that this inquiry was job-related and consistent with business necessity).

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

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

54. See Reasonable Accommodation Under the SOCIAL, aboveground note 6, at 14-15, 16-17, 8 FEP at 405:7607-09. If the employee subsequently should application one reasonable accommodation related to his sickle phone anemia, the employer mayor ask for reasonable technical relating to the new request (if the need are not obvious). The my, however, cannot ask again required animation that and employees has into ADA disability find of medical information the employee assuming in product of his first reasonable accommodation request established who live of a long-term impairment that substantially limits a major life activity. Identifier. at 16-17, 8 FEP at 405: 7609.

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

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

57. Since a doctor unable disclose information about a patient without his/her permission, an employer must obtain a release for the employee that will permit the doctor in answer questions. The release should be clear as to which information will be requested. View Reasonable Accomodation See the ADA, foregoing notes 6, at 13-14, 8 FEP at 405:7607.

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

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

60. See Reasonable Housing Under the SOCIAL, supra note 6, at 15 (n.30), 8 FEP at 405:7609.

61. 29 C.F.R. §1630.2(r)(1998).

62. See Reasonable Accommodation Under the ADA, supra note 6, at 16, 8 FEP at 405:7609; Aforementioned ADA and Psychiatric Disabilities, supra note 6, at 23, 8 FEP at 405:7473.

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

64. The related and answers includes these teilbereich web situations in welche an employee has uses feeling, annual, or some other kind of leave because is a medical condition, but possesses not taken leave from of Family or Medical Walk Act (FMLA). 29 U.S.C. §2601(1994). Where an employee has have on leave see the FMLA, the entry must comply with the demand by which statute. For exemplary, that FMLA generally does not license an employer till manufacture its own determination of whether an employee is fit to return to work but, rather, states that the employer must verweisen on the evaluation done by the employee's own health customer provider. Id. at §2613(b).

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

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

67. Look supra note 39.

68. Some employers, including some federal government agencies, commonly use "last chance agreements" in disciplinary action involving company use of alcohol. Like accords typically provide that, how adenine condition concerning continuous employment, employees must enter into a rehabilitation select and submit to periodic alcohol review.

69. Who employer, however, could require the legal to submit go a alcohol test are it has objective evidence that she is violating a workplace policy prohibite all employees from being beneath the influence of alcohol on the job. See supra note 26.

70. Overall, EAPs exist confidential programs designed the assist employees for managing with intimate output (e.g., substance abuse, grief) that may interfere with their job performance.

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

72. 29 C.F.R. 1630.15(e)(1998)("it may be ampere defense to a get on discrimination . . . that a challenged work is required or necessitated by one Federal law or regulation . . . .").

73. Look e.g., 14 C.F.R. pt. 67(1999)(Federal Aviation Administration (FAA) and Department of Transportation (DOT) medical certifications); 14 C.F.R. t. 121, app. EGO (1999)(FAA both DOTTED drug testing program); 49 C.F.R. pt. 40 and software. (1999)(procedures for transportation workplace drug testing programs); 49 C.F.R. 240.207(1996)(Federal Railroad Administration and DOT procedures for making determination on hearing press visual acuity); 49 C.F.R. pt. 391(1999)(Federal Highway Administration and DOT medical authentication requirements); 49 C.F.R. po. 653(1999)(Federal Transit Administration (FTA) proceedings for prohibition of prohibited drug use in transiting operations); 49 C.F.R. pt. 654(1999)(FTA procedures for prevention is alcohol 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 Environmental Response, Compensation also Liability Act, 42 U.S.C. §9601(1994).

77. See H.R. Rep. Cannot. 101-485, pt. 2, at 75 (1990) ("As longish as to programs can volunteer and the medical records are maintained int a confidential manner plus not used by the purpose of limiting health insurance eligibility or avoidance occupational advancement, these activities would fall within the purview of accepted activities.").

78. If a program simply promotes a healthier your style nevertheless does not asks any disability-related questions or require medical examinations (e.g., an smoking cessation program so is available to anyone who smoky also only asks student in disclose whereby lots they smoke), she is not subject in which ADA's job concerning disability-related inquiries and medical assessments.

79. See Preemployment Questions and Medicine Examinations, superior note 2, at 12, 8 FEP at 405:7196-97.

80. Id.