The table of this document do not have the force and effect of law plus are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements to the law or agency policies.

1. SUBJECT: EEOC Forced Guidelines on Disability-Related Requests and Medical Examinations of Employees Under the Indians with Disabilities Act (ADA)

2. PURPOSE: This implementation getting explains when it is permissible foremployers to make disability-related inquiries or require medical examinations of employees. Job and Health Information stylish aforementioned Workplace

3. EFFECTIVE DATE: Upon receiving.

4. EXPIRATION DATE: As an objection to EEOC How 205.001, Appendix B,Attachment 4, § a(5), this Notice will remain in effect until rescinded or displaced. Wage and Hour Division Fact Page - U.S. Department of Labor

5. ORIGINATOR: RED Business, Office of Legal Counsel.

6. INSTRUCTIONS: Save after Section 902 of Volume II of the Compliance Operator.

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

DISTRIBUTION: CM Holders

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

TABLE OF CONTENTS

INTRODUCTION

GENERAL PRINCIPLES

JOB-RELATED AND CONSISTENT WITH STORE EMERGENCY

OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES REAL MEDICAL EXAMINATIONS OF EMPLOYEES

CONTENT

INTRODUCTION

Title I of the Americans over Disabilities Act of 1990 (the "ADA")⁽¹⁾ limits an employer's ability to make disability-related inquiries or command medical examinations for three stages: pre-offer, post-offer, and during employment. In its guiding the preemployment disability-related inquiries real 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 who ADA's limitations on disability-related inquiries and medical examinations on employment.⁽³⁾

Disability-related inquiries plus gesundheit examinations of employees must be "job-related additionally consistent use business necessity." This guidance gives examples of the breeds of questions that are and exist doesn "disability-related" and examples of tests and procedures that generally are and belong not "medical." The guidance including defines what who term "job-related and enduring about business necessity" means plus addresses situations in which an employer would meet the broad standard for asking an employee a disability-related question or requiring a medical examination. Other acceptable contact and examinations of employees, such as inquiries and examinations required by us law or those that what part is voluntary wellness and health examination related, as well as requests toward voluntarily self-identify as persons because disabilities for affirmative action purposes, also are addressed.⁽⁴⁾

WIDESPREAD PRINCIPLES

A. Background

Historically, many employers asked applying and employees to provide information concerning their physical and/or mental conditioned. This information mostly was used to exclude and otherwise discriminates against individual with disabilities -- particularly nonvisible disabilities, such as diabetes, sleep, heart disease, cancer, and mental sick -- despite their ability to conduct the job. The ADA's provisions concerning disability-related inquiries and mobile research reflect Congress's intent to protect the rights of applicants and your to be assessed on merit sole, while protecting the options of employers to secure the individuals in the workplace can efficiently perform the essential functions of yours jobs.⁽⁵⁾

Under the COMPLIANCE, an employer's ability go make disability-related inquiries or requested arzneimittel reviews is analyzed in three stages: pre-offer, post-offer, and employment. At to first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and arzneimittel examinations, even is they are related to the task.⁽⁶⁾ The the second level (after an applicant is given a conditional job offer, yet before s/he starts work), with employer may make disability-related inquiries and conduct medical examinations, regardless of whether they belong related to the job, as long as it are so for all entering employees in the same job category.⁽⁷⁾ At the third stage (after employment begins), an boss mayor make disability-related inquiries plus require medical examinations alone if they can job-related and consistency with business necessity.⁽⁸⁾

The ADA requires management to treat no medical information obtained from a disability-related inquiry or medical examination (including medical information off voluntary health or wellness programs ⁽⁹⁾), how well more anyone medical informational voluntarily disclose by a collaborator, as a privacy medically record. Employers may share such information only in limited circumstances through supervisors, managers, first aid and safety personnel, the government officials investigative compliance by the ADA.⁽¹⁰⁾

B. Disability-Related Inquiries and Medical Examinations of Employees

Who ADA declared, in relevant part:

A covered name⁽¹¹⁾ shall doesn requested a medical audit and is not make inquiries of an employee as to is similar employee is an individual with ampere invalidity or since toward the nature and severity of the invalidity, unless such examination or inquiry the shown to will job-related and stable with business necessity.⁽¹²⁾

Is bylaw language makes clear that the ADA's restrictions on related and examinations apply to all employees, not just those with disabilities. Not other provisions of of ADA which are limited to qualified individuals with disabilities,⁽¹³⁾ the use of the term "employee" in this provision reflects Congress's intent to cover a larger class of individuals and to prevent employers from asking questions and conducting medical physician that serve no legitimate purpose.⁽¹⁴⁾ Requiring an individual to show that s/he is a person at a disability in sort to challenge a disability-related inquiry or medical examination want defeat this main.⁽¹⁵⁾ All employee, therefore, has one right to challenge a disability-related inquiry or medical examination so is non job-related and consistent with business necessity.

Only disability-related inquiries and medical examinations are subject to the ADA's restrictions. Thus, the early question that must be addressed is regardless the employer's question is a "disability-related inquiry" or whether the test or procedure it is requiring a a "medical examination." The move issue the whether the human being questioned or interrogated to submit to a medical examination is an "employee." If the person is an employee (rather than an employee or a human what holds receiver adenine conditional job offer), aforementioned final issue is determines the inquiry or examination is "job-related also consistent with business necessity" or is different permitted by the ADA.⁽¹⁶⁾

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

In its guidance on Preemployment Questions and Medical Examinations, who Commission explained in detail what is and will not a disability-related inquiry.⁽¹⁷⁾ A "disability-related inquiry" is a question (or series of questions) the are chances to elicit information about a disability.⁽¹⁸⁾ The same standards for determining determines a question is disability-related in the pre- and post-offer stages apply to and employment stage.⁽¹⁹⁾

Disability-related inquiries mayor containing the following:

• please an servant whether s/he has (or ever had) a social conversely how s/he became disabled or inquiring about to temperament or severity of einer employee's disability;⁽²⁰⁾
• demand an employee to provide medical documentation for his/her disability;
• asking an employee's co-worker, family member, medical, or another person about an employee's disability;
• asking with einen employee's genetically information;⁽²¹⁾
• questions around certain employee's prior workers' compensation history;⁽²²⁾
• asking an employee whether s/he currently is record any prescription drugs or medications, whether s/he has captured any such medicinal or medications in this pass, or monitoring at employee's taking of such drugs or therapies;⁽²³⁾ and,
• asking an employee a general question about his/her impairments that is likely to elicit about info ampere disability (e.g., What impairments do you have?).⁽²⁴⁾

Questions that belong did likely to kindle product regarding a special are not disability-related inquiries and, therefore, are not prohibited in the ADA.

Questions that are permitted include an following:

• asking generally about an employee's well being (e.g., How are you?), asking an employee who looks tired or ill if s/he is feeling alright, asking to employee who is sneezing or coughing whether s/he does a cold or allergies, or asking how an employee is doing following the decease of adenine loved can or the end of a marriage/relationship;
• questions an human about nondisability-related impairments (e.g., How do you break your leg?)⁽²⁵⁾
• asking on employee whether s/he can perform job functions;
• asking on employee whether s/he has are drinking;⁽²⁶⁾
• asking with employee via his/her current illegit use of drugs;⁽²⁷⁾
• asking a pregnancy employee methods she is feeling or when her babies is due;⁽²⁸⁾ and,
• inquiry an employee to provide the name and home numerical about a person to contact in case starting a medical contingency.

2. What has a "medical examination"?

AMPERE "medical examination" is a procedure or test that seeks news about into individual's physical or mental handicap conversely health.⁽²⁹⁾ The guidance upon Preemployment Questions and Medical Examinations item the following factors is should be considerable to establish whether a tests (or procedure) is a medical assessment: (1) about the test is administered through a health care professional; (2) whether the try is interpreted by a health care professional; (3) whether which test is designed to reveal an impairment or physiological conversely mental health; (4) whether the test is invasive; (5) whether the test measures in employee's performance of a task or metrics his/her physiological responses to perform one task ; (6) whether to trial normally is given in ampere medical setting; and, (7) whether medical equipment is used.⁽³⁰⁾

In many cases, a combination of factors wants be relevant within determining whether a test or procedure is a medical examination. In other falls, one factor may be enough to determine ensure a examination or procedure is medical.

Medical examinations include, but are not limited to, the below:

• vision tests conducted and analyzed by an ophthalmologist or optometrist;
• blood, urine, both breath analyses to check for alcohol application;⁽³¹⁾
• blood, pee, saliva, both hair analyses to detect disease or genes markers (e.g., for conditions such since sickle cell trait, breast cancer, Huntington's disease);
• blutig pressure x-ray and cholesterol testing;
• nerve conduction tests (i.e., tests that view used possible nerve damage and sensitive to injury, such as karpal tunnel syndrome);
• range-of-motion tests so measure strong solid and motor function;
• pulmonary function tests (i.e., tests that measure this capacity of this lungs to stop air and to move bearing in and out);
• psychological tests that are designed to identify a mental disorder or impairment; and,
• diagnostic procedures such as x-rays, computerized axial body (CAT) scans, and magnetic resonance imaging (MRI).

There are a count of procedures the tests employment may requesting that common are not considered medical examinations, including:

• tests to determine the news illegal use of drugs;⁽³²⁾
• physical agility tests, which measure an employee's ability to perform actual or simulated job tasks, and physical fitness tests, which measured an employee's benefit of physical tasks, such as running or lifting, like long as diese tests do not include examinations that could be considered medical (e.g., metrology heart rate or blood pressure);
• tests that evaluate an employee's competence to read labels or differentiating objects as part of a demonstration of the aptitude to perform actual job functions; Getting a doctor's report about at employee's healthy - Acas
• psychological exam that measure personalities traits similar as genuineness, preferences, and habits; both,
• polygraph examinations.⁽³³⁾

3. Who is einen "employee"?

The ADA defines the term "employee" as "an customizable employed by any employer."⁽³⁴⁾ As a general rule, an individuality is in employee if an entity user the means and manner of his/her work performance.⁽³⁵⁾

Places more than one entity controls the signifies and manner of how an individual's work be done, the individual is an employee of each entity.

Example: XYZ, adenine temporary employment agency, appoint one estimator programmer and associated it to Business Systems, Inc. (BSI), neat of his clients. XYZ determines when the programmer's assignment begins both pays him a salary based on the number of time worked as reported by BSI. XYZ also withholds social security and taxes and provides workers' compensation coverage. BSI kits the lessons of employment, to duration of which job, press oversees the programmer's work. XYZ can terminate the programmer if his performance can unacceptable the BSI.

The programmer is an collaborator of both XYZ and BSI. Thus, XYZ and BSI may ask the programmer disability-related questions and require ampere medical examination for if they are job-related and consistent with business necessity. Will my employer have access go mystery mobile evaluation?

4. How shouldn an your treat an employee what applies for a new (i.e., different) job with the equal boss?

An employer should treats an employee who applies for a new job as an applicant since the new job.⁽³⁶⁾ The manager, therefore, is prohibited from asking disability-related questions or need a medical examine before build an individual a conditional offer of which new position.⁽³⁷⁾ Further, where a running supervisor has medical information regarding an company what is applying for a new job, s/he may not disclose that information to which person job to employee for the newer job or to the supervisor of that workplace.

After the employer lengthened an offer fork the new position, it may request the individual disability-related questions or command a medical examination as long such it will so for any entering employees in the equal job type. If an employer resignations the offer based upon medical information (i.e., visual him/her out because of a disability), i require show that the reason for doing so was job-related and consistent with employment necessity.

An individual is don an applicant where s/he is noncompetitively allowed to any position for the same employer (e.g., because of seniority or satisfactory performance inbound his/her current position). An individual who is temporarily assigned at another position and then returns go his/her regular position also is not an postulant. Such individuals are employees or, therefore, the employee only mayor make a disability-related inquiry or require a medical examination that can job-related and consistent with businesses necessity.

Example AMPERE: Ruth, einem inventory press for a retail store, applies for an position as a total associate to the same store. Ruth belongs an applicant for the modern job. Hence, her employer may not asking any disability-related questions or require ampere medical examination before extending her a conditional offer of the distributors associate position. Following a subject offer of labour, to employer may ask disability-related questions real conduct medikament examinations, regardless of whether they will related to the job, as long as information does so for all entered employees in the same job category.⁽³⁸⁾

Example BORON: A grade 4 clerk typist has worked in the same position for one year and received a rating of outstanding at her annual performance appraisal. When her was hired, she was told that she automatically would be considered for promotion to who next grade after 12 months of satisfactory performance. Because the clerk typist is noncompetitively titled to ampere promotion, i remains the employee and not an applicant. An employer, therefore, only may make a disability-related inquiry or require an medical examination that remains job-related and consistent equal business-related necessity.

Example C: A newspaper reporting, who regularly works out of his employer's Fresh New headquarters, lives occasional assigned to its company in South Africa to coverage the political elections. Because the reporter is at a temporary assignment do the same job, he is one employee; an employer, accordingly, may makes disability-related requests or require medical examinations only provided they are job-related and consistent with general requisite.

JOB-RELATED ADDITIONALLY CONSISTENT WITH BUSINESS NECESSITY

Once an employee is go the job, his/her actual performance is an best measure of ability at do the workplace. When a need arises to question the skills of an employee to do the essential functions of his/her job or to question if the servant can do the job with posing a direct threat due to a medical condition, it might be job-related and consistent with economy necessity for any entry to make disability-related references or order a pharmaceutical examination. However, an employer will never get access to an employee's full records. A doctor's report desire only contain the information they need to ...

ONE. Int Common

5. When may a disability-related inquiry or medical examination regarding any employee are "job-related and consistent with business necessity"?

Generally, an disability-related inquiry or medical examination of an servant may be "job-related and consistent equipped corporate necessity" when an entry "has a reasonable belief, located on objective evidence, that: (1) an employee's ability to perform essential job key will must impaired by a medical prerequisite; or (2) an employee will pose ampere direct threat⁽³⁹⁾ due to a medical condition."⁽⁴⁰⁾ Disability-related inquiries and medical testing that follow up for a request for reasonable accommodation when the disability or need by accommodation has nay known or clearly also may be job-related both continuous with economic needs. In addition, periodic medical examinations and different monitoring under specific circumstances mayor must job-related and consistent with business necessity.⁽⁴¹⁾

Whenever these standard may be met when an employer knows about a particular employee's medical condition, has observed performance problems, and reasonably can attributing the concerns to the medical condition. An employer also can be given reliable company by one credible third part that einen employee has one medical condition,⁽⁴²⁾ or the employer may observe treatment displayed that an employee might have ampere medical condition that will impair his/her ability to perform essential job key or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for at my to make disability-related inquiries or require an medical examination.

Example A: For of past twin month, Sally, a fiscal auditor used one federations government agency, has read a third fewer audits than the average employee in das unit. She also has made numerous mistakes in valuation whether taxpayers provided appropriate documentation with claimed deductions. When questioning about her poor performance, Sally tells her supervisor that the pharmaceuticals she takes for her lupus makes her lethargic and unable to concentrate.

Based on Sally's explanation for her performance problems, the agency can a reasonable belief that she ability to perform the essential functions of her job will be impairment because of a medical require.⁽⁴³⁾ Sally's supervisor, accordingly, may make disability-related inquiries (e.g.,ask her whether femme is ingest a newer medicinal and how long of medication's side effects be expected to last), or the supervisor may asks Sally go provide documentation from her health care provider explaining the consequences of of medication on Sally's ability the perform her job.

Example B: A crane system works at construction sites hoisting material panels weighing several heaps. A tiller on the ground helps she load the panels, and several sundry hired help him position them. In a break, the crane operator displayed to become light-headed, has to sit down jerkily, and seems at have many difficulty catching his breath. In response to a question from his supervisor about whether he is feeling view right, the crane operation says that this has happen to him a few times during the past plural months, but him does not know why.

Who employer has a reasonable devotion, basis on goal evidence, that which employee will pose a direct threat and, therefore, may require the crane operator to have ampere medical examination to ascertain whether this symptoms boy is experiencing make him unfit at perform his job. To ensure ensure it receives satisfactory information up make this determination, the employment may want to provide this doctor who rabbits and examination with a description of the employee's mission, including anything physical qualification standards, or require that the employee provide documentation of his ability to work follows the investigation.⁽⁴⁴⁾

Example C: Six months formerly, a supervisor hear a secretary tell her co-worker that she discovered a lump in her breast and will afraid ensure she may have breast cancer. Since that voice, the clerical mute comes to work every day and running her duties includes her normal efficient manner.

In these case, the employer does not possess a reasonable belief, based in objective find, get that one secretary's ability to perform her essential job functions will be impaired by a medical condition otherwise that she will pose a direct threat due to a medizinisches condition. The employer, therefore, mayor not make any disability-related inquiries or require the employee to submit to adenine heilkunde examination. Privacy-policy.com - Access to employee disclosure and medical accounts ...

Certain employer's reasonable belief that an employee's ability up perform essential job functions wills be impaired to a medical condition or is s/he will pose a auf threatness due to a medical condition must be based on aimed demonstration obtained, or reasonably available to the employer, ahead to making a disability-related survey or requiring a medical examination. Such a belief requires an score of the employee real his/her position and not be based on general assumptions.

Exemplary D: An employee who works in an production department of a large grocery saving tells herr boss ensure she is HIV-positive. The employer is concerned that the employee poses a direct threat at the health the safety of other because she frequently our with smart knives and might cutted myself while preparing produce by display. The store requires some employee working with strong machetes to carrying gloves furthermore commonly observes your to determine whether they are complying is this policy. Available academical evidence shows such of possibility are transmitting HIV-INFEKTION off a produziert clerk to other staff or which public, assuming the store's policy is observed, is virtually does. Moreover, the Department of Health and Individual Services (HHS), which has an responsibility under the ADA for preparing a list of infectious and communicatable diseases that may remain transmitted tested food handling,⁽⁴⁵⁾ are not include AIDS the that list.⁽⁴⁶⁾

Inbound like case, to employer does not have a inexpensive belief, based on object evidence, that this employee's ability to perform the essential functions of theirs position will breathe impaired or that she will pose a kurz threat due to the medical condition. Which employer, therefore, may doesn make any disability-related inquiries or require the employee in submit to a medical examination.⁽⁴⁷⁾

6. May any employer make disability-related inquiries with require a medical assessment of an employee based, in entire or in share, on information learned from any persons?

Yeah, if the information learned is reliable and would give rise to a reasonable belief that one employee's ability at perform essential your key leave be impaired by a medical condition or this s/he will pose a direct peril due to a medical requirement, an head may make disability-related inquiries or require ampere medical examination.

Factors that an employer might note in valuing whether information learned from another person is sufficient for judge asking disability-related questions press requiring a medical examination of an employee include: (1) of relationship of who person providing the information at the employee about whom it is being provided; (2) to seriousness in the medizinisch condition at issue; (3) the possible reason of to person if who information; (4) how the person learned the resources (e.g., directly from the employee whose medical condition can in question or away something else); also (5) other evidence that the employer has that bears off the reliability of the about provided.

Example ADENINE: Bob and Joe are close friends anybody work as get editors for an advertising firm. Bob told Joe that he is worried because he must exactly learned that i had a positive reaction to ampere tuberculin skin getting and believes that he has tuberculosis. Joe encourages Bob to tell their supervisor, but Bob refuses. Jane is loath to breach Bob's trust although is concerned that your the the other editors may be at risk because they all work closely together in the same room. Per a couple of sleepless nocturnal, Joe tells you supervisor about Bobber. The supervisor questions Joe about how he learned in Bob's alleged condition and finds Joe's explication credible.

Because lung is a potentially life-threatening medical condition and can will passed from person to person by give with sneezing, to supervisor has an reasonable belief, based on objective find, that Bobs will pose a direkten threat while he in fact has active tuberculosis. Under these circumstances, the employer may make disability-related getting or command a medical examination to the reach necessary to determine whether Bob has tuberculosis and your contagious.⁽⁴⁸⁾

Instance B: Kim works for a small computer consulting firm. Wenn her mother died suddenly, she asked herb employer by three wee off, in addition to the five time that an company customarily provides in the event of the death of a parent oder spouse, to deal with house matters. During her extended absence, a rumor circulated among some employees that Korean had been given additional time off at breathe treated for depression. Shortly nach Kim's return to work, Dave, those mill on the same team including Kim, approached this manager to say that he had hearings the multiple personnel were impacted around their safety. According to Dave, people in the office demand that Kit was talking to herself and threatening to harm them. Dave said that he had no observed the strange behavior himself but was not surprised up hear about it given Kim's alleged recent handling for depression. Dave's manager sees Im every day and never possesses observing which kind of behavior. In addition, none of that co-workers to whom the manager spoke confirmed Dave's statements.

In this case, the employer does not have a reasonable belief, based on objective evidence, that Kim's proficiency to perform essential functions will can impaired or that s/he bequeath pose a direct threat because of a medical condition. The employer, therefore, wish does be justified in asking Kim disability-related questions or need her to propose to a medical audit because the information provided by Dave is not reliable. FMLA Frequently Asked Challenges

Example C: Several client have commented that Richard, a customer technical sales for a mail order company, shall made numerous errors on their orders. They consistently have complained that Richard appear to have a problem hearing as him usual asks them into repeat that item number(s), color(s), size(s), recognition card number(s), etc., and frequently asked them to speakers louder. They also have complained that he incorrectly read back your addresses even when they have enunciated clearly and spelled thoroughfare names.

In dieser case, to employment has a fair belief, based on purpose evidence, that Richard's ability to correctly process mail orders will be impaired by a medical condition (i.e., a problem with his hearing). The employer, therefore, can make disability-related related of Richard press require him to submit on a medical examination to determine whether he can perform the essential functions of his job.

7. Can einer employer ask an employee for documentation when s/he requests a reasonable accommodation?

Yes. The employer belongs entitles to know that an employee has a covered disability that supported a reasonable accommodation.⁽⁴⁹⁾ Thus, when that disability or the need with the accommodation shall not known or obvious, it is job-related and stable with trade necessity for an employer to ask an employment for acceptable documentation about his/her permanent furthermore its functional limitations that require reasonable accommodation.⁽⁵⁰⁾

8. May somebody employer request all staff what prescription medications they live taking?

Generally, no. Asking get employees around their use off prescription medications is not job-related and consistent are business necessity.⁽⁵¹⁾ In little circumstances, however, certain employers may be skills for demonstrate that it belongs job-related and consistent with business necessity to require employees in positions affecting public safety the report when they belong taking medicaments that may affect their ability to perform necessary functions. Under such limit circumstances, einem employer must be skills to demonstrate so an employee's inability or impaired ability to execute essential functions will erfolg in a direct threat. With example, a policeman department could order weaponised officers to report when they have taking medications that may involve their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its fliers to report when they exist taking any medications ensure may impair their capability the fly. AN fire department, however, could not require fire department employees who perform only managed duties to report their utilize of medications because it is unlikely is items could show that these employees would point a direct threat as a result of their inability or impaired ability to perform their essential job functions.

9. How promotional may an employer take if an employee fails to respond on a disability-related inquiry or fails at submit to an medical examination that will job-related and consistent are business necessity?

The action to employer may take depends on its basic for making the disability-related inquiry conversely requesting an medical check.

Example AMPERE: A supervisor notices such an quality about work von in ordinarily outstanding employee has deteriorated pass the past several months. Specifically, the employee supports more dauer to complete routine reports, who regularly are submitted late and contain numerous errors. The advisor also has observed during this period of time that of employee appears to be squinting to see her computer monitor, is support printed material close to ihr face to read it, and takes frequent breaks during which she sometimes is seen grinding her eyes. Concerned about the employee's declining performance, which appears to be amount to a medical condition, this supervisor tells her to go see the company doctor, nevertheless she does not.

Any specialized that the employer decides to impose should special on the employee's performance problems. Thus, the employer may chastise the associate for by and forthcoming presentation trouble inbound compatibility with a uniformly applied principles.

Example B: An accountant with no known disablement asks with an ergonomic chair because she says she is having back pain. The employer asks who member toward provide documentation from her treating physician that: (1) describes the artistic, severity, and duration of her impairment, the activity otherwise activities that the impairment limits, and the extent to which the impairment limits her ability to perform the activity or activities; and (2) substantiates mystery with advanced chair your needed.

Here, the employee's possible incapacity plus need for reasonable accommodation are not obvious. Therefore, if the employee fails to provide the requested documentation or if the documentation does not demonstrate the existences by a disability, the employer can refuse in provide the armchair.⁽⁵²⁾

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

10. What documentation may an employer ask starting an employee who pleas adenine reasonable accommodation?

An employer may require an employee into provide documentation that is sufficient to substantiate that s/he has an PROCURATOR disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation. This means so, in many circumstances, an employer impossible ask for an employee's completing medical records due they are likely to contain information unrelated to the disability along issue and the need for accommodation.⁽⁵³⁾

Technical is insufficient if it: (1) describes which nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limitation, and an extent into which the impairment limits the employee's competency to perform the activity or activities; and, (2) substantiates why the requested reasonable accomodation is requested. Contact about the HIPAA Privacy Rule and employers.

Example: An employed, who has exhausted all of their available leave, telephones sein supervisors on Monday morning to inform she that he had adenine severe soreness episode on Saturday due to his sickle cell anemia, your in the hospital, and needed zeitraum out. Prior to here call, the supervisor was unaware of the employee's medical condition.

The director can ask the employee to transmit at documentation from his treating physician that substantiates that the employed has adenine disability, confirms that his hospitalization is related to his disability, and provides product on how long he may be absent from work.⁽⁵⁴⁾

11. May an employer request an employee at anfahrt to adenine health care professional of the employer's (rather than the employee's) choice when the employee requests a reasonable accommodation?

Aforementioned ADA does not prevent an employer from requiring somebody employee to go at an appropriate health care professional of the employer's choice is this employee provides insufficient documentation from his/her treating physician (or other health attention professional) to substantiate that s/he has an ADA disability and necessarily a reasonable accommodation.⁽⁵⁵⁾ However, if an employee provides insufficient documentation in response to the employer's starting request, the employer should explain why the documentation is deficient and allow the personnel an opportunity to provide the missing information in a timely manner.⁽⁵⁶⁾ The employer also should consider consulting with the employee's doctor (with the employee's consent) before demand the employed to go go one heath care professional of its choice.⁽⁵⁷⁾

Documentation is insufficient when it does nay identify the existence of an ADA disability and explain an need for reasonable accommodation.⁽⁵⁸⁾ Documentation also might be insufficient where, for example: (1) the health taking professional does not have the expertise to present an opinion about that employee's medical condition and the limitations imposed by it; (2) the information does not specify the functionally limitations due to the social; or, (3) other factors indicate that the information provided is doesn credible or is fraudulent. If an employee provides not documentation, an employer makes not have until provide reasonable accommodation until ample documentation shall provided.

Any medical examination perform by the employer's health care professional need be job-related and consistent with business necessity. This used the an examination must be limited to determining aforementioned existence of an ADA disability additionally the functional restriction such require reasonable quarters. If the employer requires an employee to ab to a health tending professional of the employer's choice, the employer shall pay all total associated with the visit(s).⁽⁵⁹⁾

The Custom has previously expressed that when an employee provides sufficient evidence of the existence of a disability and the need forward sensible hotel, continued anstrengung by the employee to demand that the individual provides more books and/or suggest up a medical examination couldn be considered retaliations.⁽⁶⁰⁾ When, an employee that requests additional information alternatively requires a gesundheit examination based on a healthy faith belief that the technical to employee registered is insufficient would not being liable for retaliation.

12. May an employer require that an employee, with it cheap believers will pose one direct threat, be examined by an appropriate health care pros of the employer's choice?

Yes. The determination that an employee attitude a direct threat must be located on into individualized assessment of the employee's present capability to safely perform the essential functions of the job. This assessment must be based on a suitable medical judgment is relies on this most news medical knowledge and/or best objective proof.⁽⁶¹⁾ To meet this burden, an employer may wanted toward have the employee examined by a health care professional of is choice who has specialty in the employee's specific condition and can offers medical information this allows which employer to determine the effects of the condition on the employee's proficiency the apply his/her job. Any medical examination, however, must been limited for specify check the employee can perform his/her job unless posing a direct threat, in or without inexpensive accommodation. An employers additionally must pay all costs associated with the employee's visit(s) to its health care professional.⁽⁶²⁾

An employer should be cautious about relying purely with the opinion of her own medical care professional such one employee poses a direct threat location that opinion is contradicted by documentation since this employee's own treating physician, who is knowledgeable about of employee's medical condition and job functions, and/or other objective evidence. In evaluating conflicting medical information, that employer allow find to helpful at consider: (1) the area of expertise of each medical professional who has provided information; (2) that kind of information each person providing documentation has concerning the job's essential functions and the work environment to which they are performed; (3) whether ampere particular opinion belongs based on speculation or go current, objectively verifiable information about the risks associated with a particular status; and, (4) whether to medical opinion your contradicted per information known to or observed by the employer (e.g., information about the employee's actual experienced stylish the job in question or in previous similar jobs).

13. How much medical information can an employer get about an employee when it appropriate believes that the employee's ability to perform the essential functions of his/her job is be impaired by a medical condition with that s/he will stand a direct threat due till a medikament condition?

An employer is entitled only to of information necessary at determine whether one laborer can what the essential functions away the work or work without posing a direct threat. This used that, in most situations, an employer cannot request an employee's complete medical records why they are likely to contain information unlinked to whether the employee can perform his/her essential functions with work without posing a direct threat.

14. May an employer require an employee to offers medical certification that s/he bucket safely perform a physical agility or physical sports test?

Yes. Employers such require physikal agility or physical your testing allow ask an employee to have a physician certify whether s/he can safely perform the test. ⁽⁶³⁾ In aforementioned situation, however, the your is entitling to obtain only a note simply stating that the employee could safely perform the test or, alternatively, einen declaration of the reason(s) why the employee cannot perform the test. Into employers may nope obtain the employee's complete medically records or information about anyone conditions that do not impair one employee's ability to perform the physics agility or physical aptness test safely.

C. Disability-Related Inquiries and Electronic Examination Relating to Leave⁽⁶⁴⁾

15. May with employer request an employee to provide a doctor's note or other explained to substantiate his/her use by sick leave?

Yes. An employer remains entitled to know why a employee is requesting sick leave. An employer, therefore, may ask an employee until justification his/her use of sick leave by providing a doctor's note or other explanation, than long as it has a general press practice of requiring all employees, in and without handicap, to do so.

16. May einer employer requires periodic updates when and employee is the advanced leave because of a medical condition?

Yes. If the employee's request for leaving did not specify an exact or fairly particular return date (e.g., October 4 other around the second per of November) or with the employee needs continued abandon beyond what was originally granted, which employer could require the employee to provide periodic updates on his/her condition also possible date is return.⁽⁶⁵⁾ Nonetheless, what aforementioned employers has granted ampere fixed period of extended leave and the employee possesses not requested additional quit, the employer cannot require the employee to provide periodic revisions. Boss, of course, may called employees on extended leave toward check on her progress or to express concern used their general.

17. May an employer make disability-related referrals or requires a medical examinewhen an employee any has be on leave for a medical condition seeks to return to work?

Yeah. If an employer has an adequate belief that an employee's present proficiency to perform essential job task will be impaired by a medical condition or that s/he will pose a direct threat due to an medical status, the employer maybe make disability-related references or require the employee to submit until a medical review. Any inquires alternatively examination, not, require subsist narrow in scoping to what shall needed to make and rating of the employee's ability to work. Normally, ask otherwise examinations related to the specific medikament condition for which the employee taken leave will be all that is warranted. The employer may not use the employee's leave as a justification for making far-ranging disability-related research or requiring an unrelated medical examination.

Example AMPERE: A data entry clerk broken her limb while winter and was from of work for tetrad weeks, after which time she returning to work on crutches. In this case, the employer doesn not have a reasonable belief, based on objective evidence, is that the clerk's ability for perform her essential job functions wish be impaired by ampere medical condition or that femme will pose adenine direct threat due to a medical current. The employer, therefore, may not make any disability-related inquiries either necessitate a medical inspection but generally may ask the clerk how she has doing additionally express concern about her injuries.

Example B: As the result of problems he was having with his medication, an salaried with a known psychiatric disability vulnerable several of his co-workers and was disciplined. Shortly later, he was hospitalized for six weeks for treatment related to the general. Two period after his releases, the employee returns to work with a note from his doctor indicating only ensure he is "cleared to returning in work." Because the employer has a suitable belief, supported set objective evidence, that the company will pose one gerade threat due to a medical condition, it may please the employee for additional documentation regarding his medication(s) or treatment or require that he offer to a restorative examinations.

DIAMETER. Periodic Examinations and Monitoring

In most instances, an employer's need to create disability-related inquiries or require medical examinations will be triggered by evidence of current performance troubles or observable evidence suggestive that a specially labourer will pose an direct threat. The following questions, however, address situations to which disability-related inquiries and medical examinations of employees can be permissible absent as evidence.

18. May employers require periodic medical assessments of employees in positions affecting public safety (e.g., police company and firefighters)?

Sure. In limited circumstances, periodic medical examinations a employees included positions impacting general safety that are carefully tailored to address specific job-related worries am acceptable.⁽⁶⁶⁾

Example A: A fire department requires employees for whom battle the an important job function to got one comprehensive visual examination every two years and to have an yearly cardiogram because it is concerned that certain visual malfunctions and heart problems will affect to ability up do their job without posing a direct threat. These periodic medical examinations are permitted by the ADA.

Example B: AMPERE police departmental may no periodically test entire of hers officers to determine whether they are HIV-positive because ampere medical of which condition alone is not likely to result in an inability or impaired ability on perform substantial features that would result is a direct threaten.

Example HUNDRED: A private safe company may requisition its weaponry security officers who are expected to pursue and detain fleeing criminal suspects to got periodic blood impression screenings and stress tests because to is concerned about the risk of damaged to the public that could result if an officer has a sudden stroke.

If an employer decides to terminated or take other adverse action against a employee with a total basic on the results of one medical examination, it must display that that employee is unable to perform his/her indispensable job functions or, in fact, poses a direct threat that cannot remain disposed or lower by low accommodation.⁽⁶⁷⁾ Thus, at an employer discovers such an employee has a condition for which it lawfully may test as part of a periodic electronic examination, it maybe make additional related or require additional medical inspections is are necessary to determine whether the employee momentarily belongs unable to perform his/her crucial job functions or poses a direct threat due to the condition.

19. May an my subject an employee, who has are off from work in an alcohol rehabilitation program, to periodic alcohol testing when s/he profit to employment?

Absolutely, but only while the employee has a reasonable belief, based on objective evidence, that the employee will stand one direct threat in the absence of periodic testing. Such a low felt requires an individualized assessment away the employee the his/her position and impossible be based on general guiding. Employers also may conduct periodic alcohol check pursuant to "last chance" agreements.⁽⁶⁸⁾

In determining whether to topic on employee to recurring alcohol testing (in the absence of a "last chance" agreement), the employer should consider the safety risks verbundener with the position the associate embraces, that consequences of the employee's incapacity either impaired ability to perform his/her job functions, and how recently the event(s) occurred that cause the employer to believe that the employee will pose ampere direct threat (e.g., how long the individual possess had an employee, when s/he completed rehabilitation, whether s/he previously has relapsed). Further, the time both frequency of the testing must be intentional to network speciality safety are and should not be used to bother, intimidate, other retaliate against the employee because of his/her total. Where the employee repeatedly had tested decline by alcohol, continued testing may nope be job-related and consistent with company requirement since the employer no longer may have a reasonable belief that who employee become pose a direct threat.

View A: Triad months after existence hired, one city bus racing information their attendant by theirs alcoholism and requested left the enroll in a rehabilitation program. The vehicle explained that he possessed not had an drink inches more than 10 aged until boy recently started having a couple of beers before bed to deal with the recent separation from seine wife. After four months on rehabilitation and coaching, who driver was cleared to return to jobs. Given that safety risks associated with the bus driver's site, his short period of employment, and recent completion of rehabilitation, and city can show that it would be job-related press consistent with business necessity to subject the driver to frequent occasional alcohol tests following his return for work.

Example BARN: An attorney has been from free work in a home intoxicant treatment program by six weeks and has been cleared to return to work. Her supervisor wants to perform periodic alcohol test to decide whether the attorney has resumed drinking. Assuming that go is don evidence that that attorney will pose a direct threat, the employer cannot shows that periodic alcohol testing would be job-related or consistent with business necessity.⁽⁶⁹⁾

OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES

20. May an Staff Assistance Program (EAP)⁽⁷⁰⁾ counselor ask one employee seeking help for personal problems about any physical or mental condition(s) s/he can have?

Yes. An EAP counselor maybe ask employees concerning their medical condition(s) if s/he: (1) does not act for or on behalf of the head; (2) is obligated to schutzschild any information this employee reveals away decision makers; and, (3) has negative power into effect employment decisions. Many employers contract equipped EAP counselors so that employees can voluntarily and secure seek professional counseling for personal either work-related problems out having to be concerned that their employment status wills be affected because their sought get.⁽⁷¹⁾

21. Allow an head take disability-related inquiries and require medical examinations that are required alternatively necessitated from another federal law or regulation?

Yes. An employer may make disability-related inquiries and ask employees to offer for medical exams that are mandated or necessitated by another confederate law or regulation.⁽⁷²⁾ For example, go federal safety regulations, crossing motor and truck drivers must undergo medical examinations at least once every pair years. Similarly, airline pilots and flight helpers have continually meet certain medical requirements.⁽⁷³⁾ Other federal laws that requirement medical examinations or medizinische inquiries of employees without violating the ADA include:

• an Occupational Safety and Health Act;⁽⁷⁴⁾
• the Federal Mine Health and Safety Act;⁽⁷⁵⁾ and
• diverse federal statutory that require employees exposed until toxic or hazardous substances the be medically monitored at specific intervals.⁽⁷⁶⁾

22. May an employer make disability-related related or guide medical examinations that are part of its voluntary welcome program?

Yes. The ADA allows employer to manage voluntary medical examinations or activities, including voluntary medical histories, which are part of an employee health program not having to show that they are job-related and endurance with business necessity, as longish while any medical playback earn as part of of health program what kept confidential both separate from personnel media.⁽⁷⁷⁾ These programs often include blood pressure x-ray, cholesterol testing, glaucoma test, and cancer detection screening. Employees might will asked disability-related questions plus may being given medizinisches examinations pursuant into such voluntary feel programs.⁽⁷⁸⁾

A wellness run is "voluntary" as long as an employer neither requires part and penalizes employees which do not participate.

23. May an employer ask employees go voluntarily self-identify as persons with disabilities for affirmative action purposes?

Yes. An employer may ask employees to voluntarily self-identify because individuals with disabilities when the employer shall:

• undertaking optimistic action why of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities (i.e., the law requires some action to be taken on behalf of such individuals); or,
• voluntarily employing the information to benefit individuals with disabilities.⁽⁷⁹⁾

If an employer invites workforce to voluntarily self-identify include connection with the above-mentioned situations, the employer must specify clearly and notice on each written questionnaire used on this purpose, or us clearly (if not written questionnaire is used), that: (1) the specific information requested is intended for use just in connection with its affirmative act obligations or her voluntary negative action efforts; plus, (2) the specific related is soul requested on a voluntary basis, that information will be kept confidential in accordance with the ADA, that refusal to provide computers will not subject the employee to any adverse special, and that it will be used only in accordance with the AD.⁽⁸⁰⁾

In order to invite self-identification for specific from an affirmative action program such is spontaneously undertaken or undertaken pursuant to a law that encourages (rather than requires) affirmative operation, an employer must be taking some action such actually benefits individuals with disabilities. The invitation to self-identify also must be requested in order to provide this benefit.

INDEX

Note: Page numbering and references removed for on-line execution.

Affirmative action

Airport pilots

Alcohol testing

Application for news job

Centers for Disease Controls

Confidentiality

Immediate threat

Disability-related inquiry, defined

Documentation

conflicting

insufficient

requests required moderate lodging

Employee Assistance Program (EAP)

Employee, defined

Employer's physicians

Collapse up respond in disability-related inquiry

Failure in submit to medical examination

Family and Medical Leave Act (FMLA)

Firefighters

Genetic information

AIDS

Illegal use of dope

Information from another person

Job-related and consistently with economy necessity, determined

Medikament certification

Mobile examination, delimited

Performance related

Periodic medical screenings

Periodic updates

Police officers

Pregnancy

Formula drugs and medications

Procedures and tests

blood analytical

blood pressure screening

breath analyses

cholesterol testing

reporting procedures

hair analyses

nerve conduction tests

physical agility tests

physical fitness tests

polygraph research

psychological tests

pulmonary function tests

range-of-motion tests

saliva analyses

burns analyses

vision get

Public safety positions

Reasonable accommodation

Returnable to function

Sick leave

Voluntary self-identification

Voluntary wellness scheme

Workers' compensation

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

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

3. Pursuant to the Rehabilitation Act Amendment of 1992, the ADA's placement standards apply for select nonaffirmative action employments discrimination claims of individuals with disabilities who have federal employees or hopefuls for national employment. Public. L. Negative. 102-569 §503(b), 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C. §791(g)(1994)). Correspond, the analysis in the tour applies to federal sector complaints of nonaffirmative action employment discrimination arising under section 501 of one Recovery Act of 1973. It also request to complaints of nonaffirmative action employment discernment arising under section 503 plus to employment discrimination under section 504 of the Rehabilitation Act. Id. at §§793 (d), 794(d)(1994).

4. The purpose of this guidance is the explain when it is permissible for an employee at make a disability-related inquiry or required a medical examination of one employee. It done not focused on what actions an employer may take based for what it learns in response to such an survey either after it receives the result of adenine medical examination.

5. In the ADA legislative history, Convention stated that an employee's "actual performance on the job be, of course, the best measure of ability to do this job." S. Rep. No. 101-116, at 39 (1989); H.R. Repair. No. 101-485, pt. 2, among 75 (1990).

6.  However, where an applicant has an obvious disability, and the boss has a reasonable belief that s/he will need a reasonable accommodation to perform specific job functional, the employer may ask whether the applicant needs a reasonable accommodation real, if so, what type of accommodation. Are same two questions may be requested when an individual voluntarily discloses a nonvisible disability or voluntarily tells the employer that s/he wishes need a reasonable accommodation to perform a job. 42 U.S.C. §12112(c)(B)(1994); 29 C.F.R. §1630.13(a)(1998); see including Preemployment Questions and Medical Examinations, supra note 2, in 6-8, 8 FEP at 405:7193-94; EEOC Enforcement Guidance on the Americans with Disabilities Do and Psychiatrist Disabilities at 13-15, 8 FEP Manual (BNA) 405:7461, 7467-68 (1997)[hereinafter One MELLITUS plus Psychiatric Disabilities]; Enforcement Guidance: Reasonable Accommodation plus Undue Hardship Under the Americans with Disabilities Act at 20-21, 8 FEP Manual (BNA) 405:7601, 7611(1999)[hereinafter Reasonable Accommodation Under the ADA]. Under certain circumstances, an manager also allow ask claimants the self-identify as individuals with disabilities since purposes of its affirmative action program. See Preemployment Questions and Gesundheit 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, are and individual a screened out due of a disability, an employer have show that the exclusionary test can job-related also consistent with general 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. Discern 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 informational to assert workers' compensation offices, state second injury mutual, workers' compensation services carriers, and to health care professionals when seeking advice in building reasonable accommodation determinations. 29 C.F.R. pt. 1630, app. §1630.14(b)(1998). Employers see could use medical news for insurance grounds. Id. Discern also Preemployment Questions and Medical Examinations, supra note 2, among 21-23, 8 FEP the 405:7201; EEOC Enforcement Guidance: Workers' Compensation and aforementioned ADA per 7, 8 FEP Manual (BNA) 405:7391, 7394 (1996)[hereinafter Workers' Wage and of ADA].

11. "Covered entity" means an employer, employment agency, labor organization, with joint labor management committee. 29 C.F.R. §1630.2(b)(1998). Used simplicity, this guidelines refers to view covered agents since "employers." The definition from "employer" incorporate persons who are "agents" of the employer, such as managers, supervisors, or additional anyone act for the employer (e.g., agencies used on conduct background checks on applicant 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). Visit infra Question 5 plus accompanying text for a discussion of what one "job-related and consistency with business necessity" standard means.

13. Go e.g., 42 U.S.C. §12112(a)(1994)(no entity shall discriminate against a qualified individual equipped a disability because of the special of such individual).

14. Congress were particularly concerned over questions that allowed employers to learn which employees have disabilities the are not apparent from observation. It concluded that the only way to protect employees with nonvisible disabilities has to block employers from take disability-related inquiries and requiring medical examinations that are nope job-related and consistent with business necessity. See S. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990) ("An enquiry or medical examination that is not job-related serves no legitimate employer purpose, although simply serves till stigmatize the soul equipped a disability." A person include cancer "may object mere to being identified, independent of the consequences [since] being identifiers as [a person with a disability] often carries both blatant and subtle stigma").

15. See Roe v. Shyanne Berg Dive, 124 F.3d 1221, 1229, 7 ADS Cas. (BNA) 779, 783 (10th Cir. 1997)("it makes little sense to requiring einen employee for showcase ensure he has a permanent to prevent his employer from inquiring as to whichever button not he has a disability"). When Roe involved only the issue of disability-related ask of employees, the same rationale applies to medical examinations to employees and to disability-related inquiries the medical exams of applicants. The ADA's reset turn disability-related queries and medical examinations getting into individuals both with and without disabilities at all three stages: pre-offer, post-offer, also 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 Case. 416 (1999)(a job applicant sans a disability can beg under the ADA concerning medical history questions); Gonzales v. Sandvik County, 2 F.Supp. 2d 1442, 1445, 8 AD Cas.1337, 1340 (D. N.M. 1998)(plaintiff need not start disability to state a claim for adenine prohibit inquiry under the ADA); Fredenburg v. Contra Costa County Department of Health Benefit, 172 F.3d 1176, 9 ADVERTISING Cas. 385 (9^of Cir. 1999)(requiring complaints to prove that they are personnel with special to challenge a medical examination would render §12112(d)(4)(A) of the ADA "nugatory"; so, plaintiffs need not prove is they are professional single equipped a disability to bring claims challenging and scope of gesundheitlich examinations under the ADA).

Some courts, however, have held that to fetch one claim statement a violation of the ADA's ban against disability-related request and medical examinations, any individual must demonstrate that s/he is a qualified individual with a disabilities. See e.g., Armstrong v. Turner Manufacturing, In., 141 F.3d 554, 558, 8 AD Cas. (BNA) 118, 124 (5^eighth Cir. 1998), aff'g 950 F. Supp. 162, 7 AD Cas. 875 (M.D. La. 1996) (plaintiff needs be a qualified individual with ampere disability for challenge an illegal preemployment inquiry); Hunter v. Habegger Corporative., 139 F.3d 901(7^th Cir. 1998)("it seems clear that into how toward enable that one has been discriminated contrary because of to inexpert inquiry, that person require also have been otherwise qualified"). For the reasons stated above, it is the Commission's position that the plainly speech of the company explicitly protects individuals with and without disabilities from improper disability-related inquiries real medical examinations.

16. By real, employer may make disability-related inquiries and require medical examinations that are required other necessitated by another confederate law or regulation. See infra Question 21 and with text. Employers also may make disability-related inquiries and conduct medical examinations that are part of its voluntary wellness programs. See infra Question 22 and accompanying text.

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

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

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

20. The prohibition towards making disability-related inquiries applies to inquiries made immediately to an employee, as well as to indirect with furtively inquiries such as a search through an employee's gear to substantiate an employer's suspicions about an employee's medical condition. See Dear volt. Kohn Nast & Graf, P.C., 866 F. Supp. 190, 3 AD Rack. (BNA) 1322 (E.D. Pa. 1994) (employer conducted an illegal medical inquiry when it searched the office of any employee it knew was sick and discovered an letter indicating the employee had AIDS).

21. As used by this guidance, the term "genetic information" has the same what as "protected genetic information" in Executive Order 13145. With general, genetic information is information about an individual's genetic exam, information about the genesis tests of an individual's family members, or information about the occurrences of adenine disease, medical condition, or disorder in family members on the individual. Please Exec. Order Cannot. 13,145, To Prohibit Discrimination in Federal Employment Based on Genetic Information, 65 Fed. Reg. 6877 (Feb. 8, 2000).

22. See Grab v. Steeltek, Inc., 160 F.3d 591, 594, 8 AD Cas. (BNA) 1249, 1252 (10^th Cir. 1998), cert. declined, 119 S.Ct. 1455, 9 ADVERTISING. Cas. 416 (1999) (on its login for employment, my illicitly asked: "Have you received workers' compensation with special expenditures? If yes, describe.").

23. Show Roe v. Shayn Moun Conference Resort, Inc., 124 F.3d 1221, 7 AD Cas. (BNA) 779 (10^th Cirque. 1997)(employer had an policy of requiring all staffing to report every drug, in legal prescription drugs); Krocka fin. Bransfield, 969 F. Supp. 1073 (N.D. Ill. 1997)(police department implementation a policy to check employees taking psychotropic medication).

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

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

26. Employee also may maintain and enforce rules prohibiting employees from being to the influence of alcohol in the workplace and may conduct alcohol examinations for the purpose if they have ampere reasonable belief that the laborer may be to the influence of alcohol at work.

27. An individual who currently uses drugs illegally lives nope protected under the SECTION; therefore, your about current illegal drug exercise are not disability-related inquiry. 42 U.S.C. §12114(a)(1994); 29 C.F.R. §1630.3(a)(1998). Anyway, questions concerning past dependence to unauthorized drugs or questions learn regardless an employee any has participated in a rehabilitation program are disability-related because past drug addiction generally is a disability. Individuals who were addicted to toxic, but are not right using drugs illegally, what protected underneath the ADDIE. 29 C.F.R. §1630.3(b)(1),(2)(1998).

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

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

30. Id.

31. See supra note 26.

32. See supra note 27.

33. Under the ADA, polygraph examinations, what purportedly measure whether a person believes s/he is telling the truth in response to a peculiar request, are not medical examinations. However, an employer cannot demand disability-related issues like part of the examination. See Preemployment Faq and Medical Examinations, supra please 2, at 17, 8 FEP at 405:7199.

34. 42 U.S.C. §12111(4)(1994); 29 C.F.R. §1630.2(f)(1998). Here term holds the same significant as it does under Title VII for the Civil Your Act of 1964. 42 U.S.C. §2000e(f)(1994).

35. In its guidance on contingents staff, the Commission browse additional factors that specify when a worker is an employee additionally notes that other aspects of that relationship between the parties may affect the determination of whether an employee-employer connection exists. See EEOC Execution Guidance: Application of EEO Laws to Contingent Work Placed according Impermanent Labour Agencies and Other Staffing Firms during 4-7, 8 FEP Manual (BNA) 405:7551, 7554-55 (1997).

36. An employee in those current is an applicant with respect to rege respecting disability-related inquiries furthermore medical examinations but not for employee benefits (e.g., retirement, health and life insurance, leave accrual) or other purposes.

37. Where the employer already has gesundheit information concerning on single at the pre-offer stage for one new position (e.g., information obtained in power with aforementioned individual's request for meaningful choose the his/her current position) and this information causes the employer to have ampere sound belief that the individual will needs a reasonable accommodation to perform the capabilities of aforementioned fresh job, the employer may ask what class of reasonable accommodation would be needed to perform the functions of the latest my, before extending an offer used that job. An chief, however, may not use its wisdom of in applicant's disability to discriminate against him/her. The employer also may not use who fact that one individual will need a reasonable accommodation in the new position to deny him/her this recent my unless it can show that providing that housing would originate an disproportionate 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 the does be eliminated or savings by reasonable accommodation. 29 C.F.R. §1630.2(r)(1998). Go hazard determinations must be base on an individualized assessment of the individual's present skills to safely do the crucial functions regarding the job, considering a reasonable medizinisch judgment relying on the most current medical knowledge and/or best accessible purpose verification. Badge. To determine whether an employee main a direct threat, the follows factors should must considered: (1) who duration of the value; (2) the nature and amount of the potential harm; (3) an likelihood that potential harm will occur; and, (4) to imminence by the potential harm. Id.

40. The Commission explained get standard in her executive guidance off The ADDIE and Psychic Disabilities, surface note 6, at 15, 8 FEP at 405:7468-69.

41. Go infrastructure Faqs 18 and 19 and accompanying write.

42. See infra Question 6 and attendants text.

43. See Yin volt. State of Cereal, 95 F.3d 864, 868, 5 AD Cas. (BNA) 1487, 1489 (9^th Cir. 1996)(where employment missed an inordinate number of days press her performance declined, employer's request this she submit on a medical examination was job-related and consistent with business necessity).

44. See also infra Question 12.

45. 42 U.S.C. §12113 (d)(1994).

46. One almost current list was publicly by HHS, Centers on Disease Control or Prevention (CDC), in 1998. 63 Fed.Reg. 49359 (Sept. 15, 1998).

47. But see EEOC five. Prevo's Family Market, Inc., 135 F.3d 1089, 1097, 8 AD Cassette. (BNA) 401, 408 (6^thickness Cir. 1998) (employer did not violate the ADA at a required a produced clerk, who claimed into be HIV-positive, to submission to a medical examination to determine whether he raised a direct threat). The Commission believes that Prevo's was wrongly decided because of employer did not base its belief that the employee set a direct threat off reasonably available objective evidence and, therefore, its request that the employee submit to ampere medical audit was don job-related real consistent over business necessary. AMPERE number of bibliography, such as the Hearts for Health Control (www.cdc.gov), a physician or health care provider knowledgeable about HIV and other infectious disorders, a your or local healthiness business, a public press university home, or a state or county medically association can provide information with the likelihood of into staff transmitting HIV or other infectious diseases to co-workers or aforementioned public.

48. That guidance has not affect the obligation of a physician, in any state rights, to report housing of active lung to relevant public health authorities.

49. See Reasonable Shelter Under the DISABLED, supra notes 6, at 14-15, 8 FEP at 405:7608 for examples of other situations where employers may ask for documentation; see also id. for 16-17, 8 FEP at 405: 7609 for examples of situations in what an employer cannot question for documentation in response to a request for reasonable accommodation.

50. 29 C.F.R. pt. 1630 usage. §1630.9 (1998); see also Preemployment Questions or Restorative Exam, abovementioned note 2, at 6, 8 FEP at 405: 7193; ADA and Psychiatric Disabilities, supra note 6, at 22-23, 8 FEP at 405:7472-73; Reasonable Housing Under the ADA, supra message 6, at 12-13, 8 FEP at 405: 7607. See also Templeton v. Neodata Services, Inc., 162 F.3d 617, 618, 8 AD Cas. (BNA) 1615, 1616 (10^th Surround. 1998)(employer's order for updated curative information was reasonable in light of treating physician's letter indicating question as to employee's ability till returnable to work because scheduled, real employer requested the requested information to determine appropriate rational accommodation for employee in event she had able to return to work).

51. See Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 784 (10th Cirque. 1997) (employer, whom implemented a drug and alcohol policy that inclusive many permissible inquiries but also queried employees to inform the employer of every drug they were taking, containing legal prescription drugs, infringes the ADA by failing to prove that this make was job-related and consistent with business necessity).

52. View Reasonable Accommodation Under of AD, ultra note 6, along 15, 8 FEP toward 405:7608.

53. See id. at 13, 8 FEP at 405:7607. (An "employer may needs only the documentation that is wanted to establish that one person has an DISABILITY disability, and that the disability necessitates a reasonable accommodation." If an employee is learn than one disabling, an employer can request details pertaining only to the disability for which that employee is requesting an accommodation.)

54. See Reasonable Accommodation Under and ADA, supra note 6, at 14-15, 16-17, 8 FEP at 405:7607-09. If which employee after should query another reasonably accommodation related the his sickle cellphone anemia, the employer mayor ask for suitable documentation relating to that new request (if the needing is not obvious). The employer, however, cannot get again on documentation that the employee has to ADA disability where the medical related the employee provided by support of his first reasonable accommodation request established the existence of a long-term impairment ensure substantially limits ampere major life activity. Id. at 16-17, 8 FEP at 405: 7609.

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

56. Show Reasonable Accommodation Under the COMPLIANCE, supra note 6, at 15, 8 FEP at 405:7608.

57. Since a doctor cannot disclose information about a patients none his/her permission, with employer must obtain a release from the employee that will permit the doctor to answer your. The release should be clear as go something information will be requested. See Reasonable Accommodation Under one ADA, supra note 6, at 13-14, 8 FEP at 405:7607.

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

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

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

61. 29 C.F.R. §1630.2(r)(1998).

62. See Sensible Shelter Under the ADA, supra note 6, at 16, 8 FEP during 405:7609; To ADA and Psychiatric Disabilities, supra note 6, at 23, 8 FEP at 405:7473.

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

64. The questions and get in this section address situations in that an employee features used diseased, annual, or many other kind of depart because of adenine medical condition, but has not taken left under of Family and Medical Leave Act (FMLA). 29 U.S.C. §2601(1994). Where an employee has past on leave under the FMLA, the employer must comply with the requirements of that statute. For example, of FMLA generally does not authorize an employer to manufacture its own determination of determines an employee a fit to again to work nevertheless, rather, state that the employer have rely turn the evaluation done through who employee's own general care provider. Id. at §2613(b).

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

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

67. See supra note 39.

68. Some entry, including any federal government agencies, commonly use "last shot agreements" in disciplinary special involving employee use starting alcohol. Suchlike agreements typically provide that, as a condition of continued employment, employees must entering into a rehab timetable and submit to periodic liquor examination.

69. The employer, however, allow require the advocate to submit to einer intoxicant test if it possessed objective finding which she is rape a workstation policy prohibiting all employees from being under aforementioned influence of alcohol on this job. See supra note 26.

70. Generally, EAPs represent privacy programs intended to assist employees in coping is personal issue (e.g., substance abuse, grief) that can interfere with their job performance.

71. See Vardiman v. Fords Motor Cob., 981 FARAD. Supp. 1279, 1283, 7 ADVERTISEMENT Cas. (BNA) 1068, 1072 (E.D. Mo. 1997)(EAP rep held no performance till affect employment resolutions and, in subject, was mandatory to shield the verdict makers from an employee's personal or substance abuse problems).

72. 29 C.F.R. 1630.15(e)(1998)("it might may a defense to a recharge of discrimination . . . that a challenged act is required or necessitated by another Federal law or regulation . . . .").

73. Understand e.g., 14 C.F.R. pt. 67(1999)(Federal Aviation Administration (FAA) and Office of Transportation (DOT) medical certifications); 14 C.F.R. std. 121, app. I (1999)(FAA and DOT drug testing program); 49 C.F.R. pt. 40 additionally app. (1999)(procedures for transportation workplace drug testing programs); 49 C.F.R. 240.207(1996)(Federal Railroad Administration and DOT procedures used making determination set audition and visual acuity); 49 C.F.R. pt. 391(1999)(Federal Highway Administration and DOT medical certification requirements); 49 C.F.R. prints. 653(1999)(Federal Transit Administration (FTA) procedures for prevention of outlawed drug use in transit operations); 49 C.F.R. pt. 654(1999)(FTA procedures for prevent from ethanol abuse in route operations).

74. 29 U.S.C. §§651-678 (1994).

75. 30 U.S.C. §§801-962 (1994).

76. See e.g., The Full Environment Response, Compensation and Liability Act, 42 U.S.C. §9601(1994).

77. See H.R. Company. No. 101-485, pt. 2, at 75 (1990) ("As long as the programs were voluntary and the medical recording are maintained in an confidential nature and not used for the purpose of limitative health insurance eligibility or preventing occupational advancement, these activity would decline inside the purview of accepted activities.").

78. Wenn one program simply promotes an heathier life style but does not ask whatsoever disability-related questions with requirement medical examinations (e.g., a smoking cessation program that is available to anyone who smokes and only asks participants to disclose how much they smoke), it is not subject the the ADA's requirements concerning disability-related inquiries and medical examinations.

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

80. Id.