On July 27, 2000, the Equal Employment Opportunity Commission released guidance on disability-related inquiries and medical examinations relating to existing employees.
According to the EEOC, a “disability-related inquiry” is a question or series of questions which are likely, directly or indirectly, to elicit information about a disability from the employee or a co-worker. Permitted questions include asking an employee (who looks tired) if he or she is feeling well, asking an employee whether she can perform her job functions, how he broke his arm, whether he has been drinking or using drugs currently, and so forth.
Medical examinations include tests for alcohol use, vision tests, range-of-motion tests to measure strength and motor function, psychological tests which are designed to identify a mental impairment or disorder, x-rays, MRIs, and CAT scans. Excluded are drug tests, physical fitness and agility tests which measure the employee’s ability to perform job tasks (but don’t measure heart rate or blood pressure), psychological tests to measure honesty, preferences and habits, and polygraph examinations.
According to the EEOC, a disability-related inquiry or medical examination may be job-related and consistent with medical necessity and, therefore, legal, when an employer “has a reasonable belief based on objective evidence that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” This requirement may be met when an employer has observed performance problems that reasonably can be attributed to a known medical condition, or if the employer receives reliable information from a credible third party that the employee has a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat.
In such circumstances the employer may only (1) seek information necessary to determine whether the employee can perform the essential job functions or work without posing a direct threat and (2) request medical documentation about a disability and the employee’s functional limitations if the employee has requested a reasonable accommodation, and the disability is not known or obvious. In the former situation, the employer can require periodic medical examinations for employees in positions affecting public safety� such as police and fire fighters � if the examinations are limited to specific job-related concerns (e.g., vision tests) or for an employee who has signed a “last chance” agreement after having been on a leave of absence to attend an alcohol rehabilitation program. In the latter situation, if the related medical documentation is insufficient and the employer has given the employee the opportunity to cure the defect, the employer may require the employee to be examined by the employer’s doctor.
If an employee refuses to answer a permissible disability-related inquiry or to submit to such a medical examination and the employer made the request because of performance problems, the employer may impose discipline in accordance with its policies because of the performance and not because of the employee’s refusal. If the examination has resulted from the employee’s request for accommodation, the employer may deny the accommodation.
The EEOC guidance also addresses inquiries relating to medical leaves. The EEOC states that an employer is entitled to know why an employee is requesting medical leave and may require a doctor’s note if such a requirement is consistent with the employer’s policy. The employer may also require periodic updates if a return date was not given or if the employee requests more leave. The employer may also make inquiries and require medical examinations if the employee seeks to return to work and the employer has a reasonable belief that the employee’s present ability to perform essential job functions will be impaired or that the employee will pose a direct threat.
This latest EEOC pronouncement provides some clarity on the Americans with Disabilities Act as it relates to existing employees, but it is not always a simple path to follow. Call us if we can assist.
– Cynthia Dixon