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The U.S. Equal Employment Opportunity Commission

  NOTICE Number
EEOC 915.002
Date
    7/27/00

1. SUBJECT: EEOC Enforcement Guidance on Disability-Related Inquiries = and=20 Medical Examinations of Employees Under the Americans with Disabilities = Act=20 (ADA)

2. PURPOSE: This enforcement guidance explains when it is permissible = foremployers to make disability-related inquiries or require medical=20 examinations of employees.

3. EFFECTIVE DATE: Upon receipt.

4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix=20 B,Attachment 4, =A7 a(5), this Notice will remain in effect until = rescinded or=20 superseded.

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

6. INSTRUCTIONS: File after Section 902 of Volume II of the = Compliance=20 Manual.







7/27/00                   /s/
Date                  Ida L. Castro
                      Chairwoman
                         =20
                         =20

DISTRIBUTION: CM Holders

ENFORCEMENT GUIDANCE:
DISABILITY-RELATED INQUIRIES = AND=20 MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES = ACT=20 (ADA)

TABLE OF CONTENTS

INTROD= UCTION

GENERA= L=20 PRINCIPLES

Backgr= ound

Disabi= lity-Related=20 Inquiries and Medical Examinations of Employees

JOB-RE= LATED AND=20 CONSISTENT WITH BUSINESS NECESSITY

In=20 General

Scope = and=20 Manner of Disability-Related Inquiries and Medical Examinations

Disabi= lity-Related=20 Inquiries and Medical Examinations Relating to Leave

Period= ic=20 Testing and Monitoring

OTHER= =20 ACCEPTABLE DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF=20 EMPLOYEES

INDEX=

INTRODUCTION

Title I of the Americans with Disabilities Act of 1990 (the "ADA")(1)=20 limits an employer's ability to make disability-related inquiries or = require=20 medical examinations at three stages: pre-offer, post-offer, and during=20 employment. In its guidance on preemployment disability-related = inquiries and=20 medical examinations, the Commission addressed the ADA's restrictions on = disability-related inquiries and medical examinations at the pre- and = post-offer=20 stages.(2)=20 This enforcement guidance focuses on the ADA's limitations on = disability-related=20 inquiries and medical examinations during employment.(3)

Disability-related inquiries and medical examinations of employees = must be=20 "job-related and consistent with business necessity." This guidance = gives=20 examples of the kinds of questions that are and are not = "disability-related" and=20 examples of tests and procedures that generally are and are not = "medical." The=20 guidance also defines what the term "job-related and consistent with = business=20 necessity" means and addresses situations in which an employer would = meet the=20 general standard for asking an employee a disability-related question or = requiring a medical examination. Other acceptable inquiries and = examinations of=20 employees, such as inquiries and examinations required by federal law = and those=20 that are part of voluntary wellness and health screening programs, as = well as=20 invitations to voluntarily self-identify as persons with disabilities = for=20 affirmative action purposes, also are addressed.(4)

GENERAL PRINCIPLES

A. Background

Historically, many employers asked applicants and employees to = provide=20 information concerning their physical and/or mental condition. This = information=20 often was used to exclude and otherwise discriminate against individuals = with=20 disabilities -- particularly nonvisible disabilities, such as diabetes,=20 epilepsy, heart disease, cancer, and mental illness -- despite their = ability to=20 perform the job. The ADA's provisions concerning disability-related = inquiries=20 and medical examinations reflect Congress's intent to protect the rights = of=20 applicants and employees to be assessed on merit alone, while protecting = the=20 rights of employers to ensure that individuals in the workplace can = efficiently=20 perform the essential functions of their jobs.(5)

Under the ADA, an employer's ability to make disability-related = inquiries or=20 require medical examinations is analyzed in three stages: pre-offer, = post-offer,=20 and employment. At the first stage (prior to an offer of=20 employment), the ADA prohibits all disability-related inquiries = and=20 medical examinations, even if they are related to the job.(6)=20 At the second stage (after an applicant is given a conditional = job=20 offer, but before s/he starts work), an employer may make=20 disability-related inquiries and conduct medical examinations, = regardless of=20 whether they are related to the job, as long as it does so for all = entering=20 employees in the same job category.(7)=20 At the third stage (after employment begins), an = employer may=20 make disability-related inquiries and require medical examinations = only=20 if they are job-related and consistent with business necessity.(8)

The ADA requires employers to treat any medical information obtained = from a=20 disability-related inquiry or medical examination (including medical = information=20 from voluntary health or wellness programs (9)),=20 as well as any medical information voluntarily disclosed by an employee, = as a=20 confidential medical record. Employers may share such information only = in=20 limited circumstances with supervisors, managers, first aid and safety=20 personnel, and government officials investigating compliance with the = ADA.(10)

B. Disability-Related Inquiries and Medical Examinations = of=20 Employees

The ADA states, in relevant part:

A covered entity(11)=20 shall not require a medical examination and shall not make inquiries = of an=20 employee as to whether such employee is an individual with a = disability or as=20 to the nature and severity of the disability, unless such examination = or=20 inquiry is shown to be job-related and consistent with business = necessity.(12)

This statutory language makes clear that the ADA's restrictions on = inquiries=20 and examinations apply to all employees, not just those with = disabilities.=20 Unlike other provisions of the ADA which are limited to qualified = individuals=20 with disabilities,(13)=20 the use of the term "employee" in this provision reflects Congress's = intent to=20 cover a broader class of individuals and to prevent employers from = asking=20 questions and conducting medical examinations that serve no legitimate=20 purpose.(14)=20 Requiring an individual to show that s/he is a person with a disability = in order=20 to challenge a disability-related inquiry or medical examination would = defeat=20 this purpose.(15)=20 Any employee, therefore, has a right to challenge a = disability-related=20 inquiry or medical examination that is not job-related and consistent = with=20 business necessity.

Only disability-related inquiries and medical examinations are = subject to the=20 ADA's restrictions. Thus, the first issue that must be addressed is = whether the=20 employer's question is a "disability-related inquiry" or whether the = test or=20 procedure it is requiring is a "medical examination." The next issue is = whether=20 the person being questioned or asked to submit to a medical examination = is an=20 "employee." If the person is an employee (rather than an applicant or a = person=20 who has received a conditional job offer), the final issue is whether = the=20 inquiry or examination is "job-related and consistent with business = necessity"=20 or is otherwise permitted by the ADA.(16)

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

In its guidance on Preemployment Questions and Medical Examinations, = the=20 Commission explained in detail what is and is not a disability-related=20 inquiry.(17)=20 A "disability-related inquiry" is a question (or series of = questions)=20 that is likely to elicit information about a disability.(18)=20 The same standards for determining whether a question is = disability-related in=20 the pre- and post-offer stages apply to the employment stage.(19)

Disability-related inquiries may include the following:

Questions that are not likely to elicit information = about a=20 disability are not disability-related inquiries and, therefore, = are not=20 prohibited under the ADA.

Questions that are permitted include the = following:

2. What is a "medical examination"?

A "medical examination" is a procedure or test that seeks = information=20 about an individual's physical or mental impairments or = health.(29)=20 The guidance on Preemployment Questions and Medical Examinations lists = the=20 following factors that should be considered to determine whether a test = (or=20 procedure) is a medical examination: (1) whether the test is = administered by a=20 health care professional; (2) whether the test is interpreted by a = health care=20 professional; (3) whether the test is designed to reveal an impairment = or=20 physical or mental health; (4) whether the test is invasive; (5) whether = the=20 test measures an employee's performance of a task or measures his/her=20 physiological responses to performing the task ; (6) whether the test = normally=20 is given in a medical setting; and, (7) whether medical equipment is = used.(30)

In many cases, a combination of factors will be relevant in = determining=20 whether a test or procedure is a medical examination. In other cases, = one factor=20 may be enough to determine that a test or procedure is medical.

Medical examinations include, but are not limited = to, the=20 following:

There are a number of procedures and tests employers may = require that=20 generally are not considered medical examinations, = including:

3. Who is an "employee"?

The ADA defines the term "employee" as "an individual employed by an=20 employer."(34)=20 As a general rule, an individual is an employee if an entity controls = the means=20 and manner of his/her work performance.(35)

Where more than one entity controls the means and manner of how an=20 individual's work is done, the individual is an employee of each = entity.

Example: XYZ, a temporary employment agency, hires a = computer=20 programmer and assigns him to Business Systems, Inc. (BSI), one of its = clients. XYZ determines when the programmer's assignment begins and = pays him a=20 salary based on the number of hours worked as reported by BSI. XYZ = also=20 withholds social security and taxes and provides workers' compensation = coverage. BSI sets the hours of work, the duration of the job, and = oversees=20 the programmer's work. XYZ can terminate the programmer if his = performance is=20 unacceptable to BSI.

The programmer is an employee of both XYZ and BSI. Thus, XYZ and = BSI may=20 ask the programmer disability-related questions and require a medical=20 examination only if they are job-related and consistent with business=20 necessity.

4. How should an employer treat an employee who applies for a = new=20 (i.e., different) job with the same employer?

An employer should treat an employee who applies for a new = job as an=20 applicant for the new job.(36)=20 The employer, therefore, is prohibited from asking disability-related = questions=20 or requiring a medical examination before making the individual a = conditional=20 offer of the new position.(37)=20 Further, where a current supervisor has medical information regarding an = employee who is applying for a new job, s/he may not disclose that = information=20 to the person interviewing the employee for the new job or to the = supervisor of=20 that job.

After the employer extends an offer for the new position, it may ask = the=20 individual disability-related questions or require a medical examination = as long=20 as it does so for all entering employees in the same job category. If an = employer withdraws the offer based on medical information (i.e., = screens=20 him/her out because of a disability), it must show that the reason for = doing so=20 was job-related and consistent with business necessity.

An individual is not an applicant where s/he is=20 noncompetitively entitled to another position with the = same=20 employer (e.g., because of seniority or satisfactory performance = in=20 his/her current position). An individual who is temporarily assigned to = another=20 position and then returns to his/her regular job also is not an = applicant. These=20 individuals are employees and, therefore, the employer only may make a=20 disability-related inquiry or require a medical examination that is = job-related=20 and consistent with business necessity.

Example A: Ruth, an inventory clerk for a retail store, = applies for=20 a position as a sales associate at the same store. Ruth is an = applicant for=20 the new job. Accordingly, her employer may not ask any = disability-related=20 questions or require a medical examination before extending her a = conditional=20 offer of the sales associate position. Following a conditional offer = of=20 employment, the employer may ask disability-related questions and = conduct=20 medical examinations, regardless of whether they are related to the = job, as=20 long as it does so for all entering employees in the same job = category.(38)

Example B: A grade 4 clerk typist has worked in the same = position=20 for one year and received a rating of outstanding on her annual = performance=20 appraisal. When she was hired, she was told that she automatically = would be=20 considered for promotion to the next grade after 12 months of = satisfactory=20 performance. Because the clerk typist is noncompetitively entitled to = a=20 promotion, she is an employee and not an applicant. The employer, = therefore,=20 only may make a disability-related inquiry or require a medical = examination=20 that is job-related and consistent with business = necessity.

Example C: A newspaper reporter, who regularly works out of = his=20 employer's New York headquarters, is temporarily assigned to its = bureau in=20 South Africa to cover the political elections. Because the reporter is = on a=20 temporary assignment doing the same job, he is an employee; the = employer,=20 therefore, may make disability-related inquiries or require medical=20 examinations only if they are job-related and consistent with business = necessity.

JOB-RELATED AND CONSISTENT WITH BUSINESS = NECESSITY

Once an employee is on the job, his/her actual performance is the = best=20 measure of ability to do the job. When a need arises to question the = ability of=20 an employee to do the essential functions of his/her job or to question = whether=20 the employee can do the job without posing a direct threat due to a = medical=20 condition, it may be job-related and consistent with business necessity = for an=20 employer to make disability-related inquiries or require a medical=20 examination.

A. In General

5. When may a disability-related inquiry or medical examination of an = employee be "job-related and consistent with business=20 necessity"?

Generally, a disability-related inquiry or medical examination of an = employee=20 may be "job-related and consistent with business necessity" when an = employer=20 "has a reasonable belief, based on objective evidence, that: (1) an = employee's=20 ability to perform essential job functions will be impaired by a medical = condition; or (2) an employee will pose a direct threat(39)=20 due to a medical condition."(40)=20 Disability-related inquiries and medical examinations that follow up on = a=20 request for reasonable accommodation when the disability or need for=20 accommodation is not known or obvious also may be job-related and = consistent=20 with business necessity. In addition, periodic medical examinations and = other=20 monitoring under specific circumstances may be job-related and = consistent with=20 business necessity.(41)

Sometimes this standard may be met when an employer knows about a = particular=20 employee's medical condition, has observed performance problems, and = reasonably=20 can attribute the problems to the medical condition. An employer also = may be=20 given reliable information by a credible third party = that an=20 employee has a medical condition,(42)=20 or the employer may observe symptoms indicating that an employee may = have a=20 medical condition that will impair his/her ability to perform essential = job=20 functions or will pose a direct threat. In these situations, it may be=20 job-related and consistent with business necessity for an employer to = make=20 disability-related inquiries or require a medical examination.

Example A: For the past two months, Sally, a tax auditor for = a=20 federal government agency, has done a third fewer audits than the = average=20 employee in her unit. She also has made numerous mistakes in assessing = whether=20 taxpayers provided appropriate documentation for claimed deductions. = When=20 questioned about her poor performance, Sally tells her supervisor that = the=20 medication she takes for her lupus makes her lethargic and unable to=20 concentrate.

Based on Sally's explanation for her performance problems, the = agency has a=20 reasonable belief that her ability to perform the essential functions = of her=20 job will be impaired because of a medical condition.(43)=20 Sally's supervisor, therefore, may make disability-related inquiries=20 (e.g.,ask her whether she is taking a new medication and how = long the=20 medication's side effects are expected to last), or the supervisor may = ask=20 Sally to provide documentation from her health care provider = explaining the=20 effects of the medication on Sally's ability to perform her=20 job.

Example B: A crane operator works at construction sites = hoisting=20 concrete panels weighing several tons. A rigger on the ground helps = him load=20 the panels, and several other workers help him position them. During a = break,=20 the crane operator appears to become light-headed, has to sit down = abruptly,=20 and seems to have some difficulty catching his breath. In response to = a=20 question from his supervisor about whether he is feeling all right, = the crane=20 operator says that this has happened to him a few times during the = past=20 several months, but he does not know why.

The employer has a reasonable belief, based on objective evidence, = that the=20 employee will pose a direct threat and, therefore, may require the = crane=20 operator to have a medical examination to ascertain whether the = symptoms he is=20 experiencing make him unfit to perform his job. To ensure that it = receives=20 sufficient information to make this determination, the employer may = want to=20 provide the doctor who does the examination with a description of the=20 employee's duties, including any physical qualification standards, and = require=20 that the employee provide documentation of his ability to work = following the=20 examination.(44)

Example C: Six months ago, a supervisor heard a secretary = tell her=20 co-worker that she discovered a lump in her breast and is afraid that = she may=20 have breast cancer. Since that conversation, the secretary still comes = to work=20 every day and performs her duties in her normal efficient manner.

In this case, the employer does not have a reasonable belief, based = on=20 objective evidence, either that the secretary's ability to perform her = essential job functions will be impaired by a medical condition or = that she=20 will pose a direct threat due to a medical condition. The employer, = therefore,=20 may not make any disability-related inquiries or require the employee = to=20 submit to a medical examination.

An employer's reasonable belief that an employee's ability to perform = essential job functions will be impaired by a medical condition or that = s/he=20 will pose a direct threat due to a medical condition must be based on=20 objective evidence obtained, or reasonably available to the = employer,=20 prior to making a disability-related inquiry or requiring a medical = examination.=20 Such a belief requires an assessment of the employee and his/her = position and=20 cannot be based on general assumptions.

Example D: An employee who works in the produce department = of a=20 large grocery store tells her supervisor that she is HIV-positive. The = employer is concerned that the employee poses a direct threat to the = health=20 and safety of others because she frequently works with sharp knives = and might=20 cut herself while preparing produce for display. The store requires = any=20 employee working with sharp knives to wear gloves and frequently = observes=20 employees to determine whether they are complying with this policy. = Available=20 scientific evidence shows that the possibility of transmitting HIV = from a=20 produce clerk to other employees or the public, assuming the store's = policy is=20 observed, is virtually nonexistent. Moreover, the Department of Health = and=20 Human Services (HHS), which has the responsibility under the ADA for = preparing=20 a list of infectious and communicable diseases that may be transmitted = through=20 food handling,(45)=20 does not include HIV on the list.(46)

In this case, the employer does not have a reasonable = belief,=20 based on objective evidence, that this employee's ability to perform = the=20 essential functions of her position will be impaired or that she will = pose a=20 direct threat due to her medical condition. The employer, therefore, = may not=20 make any disability-related inquiries or require the employee to = submit to a=20 medical examination.(47)

6. May an employer make disability-related inquiries or require a = medical=20 examination of an employee based, in whole or in part, on = information=20 learned from another person?

Yes, if the information learned is reliable and = would give=20 rise to a reasonable belief that the employee's ability to perform = essential job=20 functions will be impaired by a medical condition or that s/he will pose = a=20 direct threat due to a medical condition, an employer may make=20 disability-related inquiries or require a medical examination.

Factors that an employer might consider in assessing whether = information=20 learned from another person is sufficient to justify asking = disability-related=20 questions or requiring a medical examination of an employee include: (1) = the=20 relationship of the person providing the information to the employee = about whom=20 it is being provided; (2) the seriousness of the medical condition at = issue; (3)=20 the possible motivation of the person providing the information; (4) how = the=20 person learned the information (e.g., directly from the employee = whose=20 medical condition is in question or from someone else); and (5) other = evidence=20 that the employer has that bears on the reliability of the information=20 provided.

Example A: Bob and Joe are close friends who work as copy = editors=20 for an advertising firm. Bob tells Joe that he is worried because he = has just=20 learned that he had a positive reaction to a tuberculin skin test and = believes=20 that he has tuberculosis. Joe encourages Bob to tell their supervisor, = but Bob=20 refuses. Joe is reluctant to breach Bob's trust but is concerned that = he and=20 the other editors may be at risk since they all work closely together = in the=20 same room. After a couple of sleepless nights, Joe tells his = supervisor about=20 Bob. The supervisor questions Joe about how he learned of Bob's = alleged=20 condition and finds Joe's explanation credible.

Because tuberculosis is a potentially life-threatening medical = condition=20 and can be passed from person to person by coughing or sneezing, the=20 supervisor has a reasonable belief, based on objective evidence, that = Bob will=20 pose a direct threat if he in fact has active tuberculosis. Under = these=20 circumstances, the employer may make disability-related inquiries or = require a=20 medical examination to the extent necessary to determine whether Bob = has=20 tuberculosis and is contagious.(48)

Example B: Kim works for a small computer consulting firm. = When her=20 mother died suddenly, she asked her employer for three weeks off, in = addition=20 to the five days that the company customarily provides in the event of = the=20 death of a parent or spouse, to deal with family matters. During her = extended=20 absence, a rumor circulated among some employees that Kim had been = given=20 additional time off to be treated for depression. Shortly after Kim's = return=20 to work, Dave, who works on the same team with Kim, approached his = manager to=20 say that he had heard that some workers were concerned about their = safety.=20 According to Dave, people in the office claimed that Kim was talking = to=20 herself and threatening to harm them. Dave said that he had not = observed the=20 strange behavior himself but was not surprised to hear about it given = Kim's=20 alleged recent treatment for depression. Dave's manager sees Kim every = day and=20 never has observed this kind of behavior. In addition, none of the = co-workers=20 to whom the manager spoke confirmed Dave's statements.

In this case, the employer does not have a reasonable belief, based = on=20 objective evidence, that Kim's ability to perform essential functions = will be=20 impaired or that s/he will pose a direct threat because of a medical=20 condition. The employer, therefore, would not be justified in asking = Kim=20 disability-related questions or requiring her to submit to a medical=20 examination because the information provided by Dave is not=20 reliable.

Example C: Several customers have complained that Richard, a = customer service representative for a mail order company, has made = numerous=20 errors on their orders. They consistently have complained that Richard = seems=20 to have a problem hearing because he always asks them to repeat the = item=20 number(s), color(s), size(s), credit card number(s), etc., and = frequently asks=20 them to speak louder. They also have complained that he incorrectly = reads back=20 their addresses even when they have enunciated clearly and spelled = street=20 names.

In this case, the employer has a reasonable belief, based on = objective=20 evidence, that Richard's ability to correctly process mail orders will = be=20 impaired by a medical condition (i.e., a problem with his = hearing). The=20 employer, therefore, may make disability-related inquiries of Richard = or=20 require him to submit to a medical examination to determine whether he = can=20 perform the essential functions of his job.

7. May an employer ask an employee for documentation = when=20 s/he requests a reasonable accommodation?

Yes. The employer is entitled to know that an employee has a covered=20 disability that requires a reasonable accommodation.(49)=20 Thus, when the disability or the need for the accommodation is = not known=20 or obvious, it is job-related and consistent with business = necessity=20 for an employer to ask an employee for reasonable documentation about = his/her=20 disability and its functional limitations that require reasonable=20 accommodation.(50)

8. May an employer ask all employees what prescription=20 medications they are taking?

Generally, no. Asking all employees about their use of prescription=20 medications is not job-related and consistent with business necessity.(51)=20 In limited circumstances, however, certain employers may be able to = demonstrate=20 that it is job-related and consistent with business necessity = to=20 require employees in positions affecting public safety to report when = they are=20 taking medication that may affect their ability to perform essential=20 functions. Under these limited circumstances, an employer must = be able=20 to demonstrate that an employee's inability or impaired ability to = perform=20 essential functions will result in a direct threat. For = example, a=20 police department could require armed officers to report when they are = taking=20 medications that may affect their ability to use a firearm or to perform = other=20 essential functions of their job. Similarly, an airline could require = its pilots=20 to report when they are taking any medications that may impair their = ability to=20 fly. A fire department, however, could not require fire department = employees who=20 perform only administrative duties to report their use of medications = because it=20 is unlikely that it could show that these employees would pose a direct = threat=20 as a result of their inability or impaired ability to perform their = essential=20 job functions.

9. What action may an employer take if an employee fails to = respond=20 to a disability-related inquiry or fails to submit to a medical=20 examination that is job-related and consistent with business=20 necessity?

The action the employer may take depends on its reason for making the = disability-related inquiry or requiring a medical examination.

Example A: A supervisor notices that the quality of work = from an=20 ordinarily outstanding employee has deteriorated over the past several = months.=20 Specifically, the employee requires more time to complete routine = reports,=20 which frequently are submitted late and contain numerous errors. The=20 supervisor also has observed during this period of time that the = employee=20 appears to be squinting to see her computer monitor, is holding = printed=20 material close to her face to read it, and takes frequent breaks = during which=20 she sometimes is seen rubbing her eyes. Concerned about the employee's = declining performance, which appears to be due to a medical condition, = the=20 supervisor tells her to go see the company doctor, but she does = not.

Any discipline that the employer decides to impose should focus on = the=20 employee's performance problems. Thus, the employer = may=20 discipline the employee for past and future performance problems in = accordance=20 with a uniformly applied policy.

Example B: An accountant with no known disability asks for = an=20 ergonomic chair because she says she is having back pain. The employer = asks=20 the employee to provide documentation from her treating physician = that: (1)=20 describes the nature, severity, and duration of her impairment, the = activity=20 or activities that the impairment limits, and the extent to which the=20 impairment limits her ability to perform the activity or activities; = and (2)=20 substantiates why an ergonomic chair is needed.

Here, the employee's possible disability and need for = reasonable=20 accommodation are not obvious. Therefore, if the employee = fails to=20 provide the requested documentation or if the documentation does not=20 demonstrate the existence of a disability, the employer can refuse to = provide=20 the chair.(52)

B. Scope and Manner of Disability-Related Inquiries = and Medical=20 Examinations

10. What documentation may an employer require from = an=20 employee who requests a reasonable accommodation?

An employer may require an employee to provide documentation that is=20 sufficient to substantiate that s/he has an ADA = disability and=20 needs the reasonable accommodation requested, but cannot ask for = unrelated=20 documentation. This means that, in most circumstances, an employer = cannot ask=20 for an employee's complete medical records because they are likely to = contain=20 information unrelated to the disability at issue and the need for=20 accommodation.(53)

Documentation is sufficient if it: (1) describes the nature, = severity, and=20 duration of the employee's impairment, the activity or activities that = the=20 impairment limits, and the extent to which the impairment limits the = employee's=20 ability to perform the activity or activities; and, (2) substantiates = why the=20 requested reasonable accommodation is needed.

Example: An employee, who has exhausted all of his available = leave,=20 telephones his supervisor on Monday morning to inform him that he had = a severe=20 pain episode on Saturday due to his sickle cell anemia, is in the = hospital,=20 and needs time off. Prior to this call, the supervisor was unaware of = the=20 employee's medical condition.

The employer can ask the employee to send in documentation from his = treating physician that substantiates that the employee has a = disability,=20 confirms that his hospitalization is related to his disability, and = provides=20 information on how long he may be absent from work.(54)

11. May an employer require an employee to go to a health = care=20 professional of the employer's (rather than the employee's) = choice when=20 the employee requests a reasonable accommodation?

The ADA does not prevent an employer from requiring an employee to go = to an=20 appropriate health care professional of the employer's choice if the = employee=20 provides insufficient documentation from his/her = treating=20 physician (or other health care professional) to substantiate that s/he = has an=20 ADA disability and needs a reasonable accommodation.(55)=20 However, if an employee provides insufficient documentation in response = to the=20 employer's initial request, the employer should explain why the = documentation is=20 insufficient and allow the employee an opportunity to provide the = missing=20 information in a timely manner.(56)=20 The employer also should consider consulting with the employee's doctor = (with=20 the employee's consent) before requiring the employee to go to a health = care=20 professional of its choice.(57)

Documentation is insufficient if it does not specify = the=20 existence of an ADA disability and explain the need for reasonable=20 accommodation.(58)=20 Documentation also might be insufficient where, for example: (1) the = health care=20 professional does not have the expertise to give an opinion about the = employee's=20 medical condition and the limitations imposed by it; (2) the information = does=20 not specify the functional limitations due to the disability; or, (3) = other=20 factors indicate that the information provided is not credible or is = fraudulent.=20 If an employee provides insufficient documentation, an employer does not = have to=20 provide reasonable accommodation until sufficient documentation is = provided.

Any medical examination conducted by the employer's health care = professional=20 must be job-related and consistent with business necessity. This means = that the=20 examination must be limited to determining the existence of an ADA = disability=20 and the functional limitations that require reasonable accommodation. If = an=20 employer requires an employee to go to a health care professional of the = employer's choice, the employer must pay all costs associated with the=20 visit(s).(59)

The Commission has previously stated that when an employee provides=20 sufficient evidence of the existence of a disability and the need for = reasonable=20 accommodation, continued efforts by the employer to require that the = individual=20 provide more documentation and/or submit to a medical examination could = be=20 considered retaliation.(60)=20 However, an employer that requests additional information or requires a = medical=20 examination based on a good faith belief that the documentation the = employee=20 submitted is insufficient would not be liable for = retaliation.

12. May an employer require that an employee, who it = reasonably=20 believes will pose a direct threat, be examined by an appropriate health = care=20 professional of the employer's choice?

Yes. The determination that an employee poses a = direct=20 threat must be based on an individualized assessment of the employee's = present=20 ability to safely perform the essential functions of the job. This = assessment=20 must be based on a reasonable medical judgment that relies on the most = current=20 medical knowledge and/or best objective evidence.(61)=20 To meet this burden, an employer may want to have the employee examined = by a=20 health care professional of its choice who has expertise in the = employee's=20 specific condition and can provide medical information that allows the = employer=20 to determine the effects of the condition on the employee's ability to = perform=20 his/her job. Any medical examination, however, must be limited to = determining=20 whether the employee can perform his/her job without posing a direct = threat,=20 with or without reasonable accommodation. An employer also must pay all = costs=20 associated with the employee's visit(s) to its health care = professional.(62)

An employer should be cautious about relying solely on the opinion of = its own=20 health care professional that an employee poses a direct threat where = that=20 opinion is contradicted by documentation from the employee's own = treating=20 physician, who is knowledgeable about the employee's medical condition = and job=20 functions, and/or other objective evidence. In evaluating conflicting = medical=20 information, the employer may find it helpful to consider: (1) the area = of=20 expertise of each medical professional who has provided information; (2) = the=20 kind of information each person providing documentation has about the = job's=20 essential functions and the work environment in which they are = performed; (3)=20 whether a particular opinion is based on speculation or on current, = objectively=20 verifiable information about the risks associated with a particular = condition;=20 and, (4) whether the medical opinion is contradicted by information = known to or=20 observed by the employer (e.g., information about the employee's = actual=20 experience in the job in question or in previous similar=20 jobs).

13. How much medical information can an employer = obtain=20 about an employee when it reasonably believes that an employee's = ability=20 to perform the essential functions of his/her job will be = impaired by a=20 medical condition or that s/he will pose a direct = threat due to=20 a medical condition?

An employer is entitled only to the information necessary to = determine=20 whether the employee can do the essential functions of the job or work = without=20 posing a direct threat. This means that, in most situations, an employer = cannot=20 request an employee's complete medical records because they are likely = to=20 contain information unrelated to whether the employee can perform = his/her=20 essential functions or work without posing a direct threat.

14. May an employer require an employee to provide medical=20 certification that s/he can safely perform a physical agility or = physical=20 fitness test?

Yes. Employers that require physical agility or physical fitness = tests may=20 ask an employee to have a physician certify whether s/he can safely = perform the=20 test. (63)=20 In this situation, however, the employer is entitled to obtain only = a=20 note simply stating that the employee can safely perform the test or,=20 alternatively, an explanation of the reason(s) why the employee cannot = perform=20 the test. An employer may not obtain the employee's complete = medical=20 records or information about any conditions that do not affect the = employee's=20 ability to perform the physical agility or physical fitness test = safely.

C. Disability-Related Inquiries and Medical = Examinations=20 Relating to Leave(64)

15. May an employer request an employee to provide a doctor's = note or=20 other explanation to substantiate his/her use of sick = leave?

Yes. An employer is entitled to know why an employee is requesting = sick=20 leave. An employer, therefore, may ask an employee to justify his/her = use of=20 sick leave by providing a doctor's note or other explanation, as long as = it has=20 a policy or practice of requiring all employees, with and without = disabilities,=20 to do so.

16. May an employer require periodic updates when an = employee is on extended leave because of a medical condition?

Yes. If the employee's request for leave did not specify an exact or = fairly=20 specific return date (e.g., October 4 or around the second week = of=20 November) or if the employee needs continued leave beyond what was = originally=20 granted, the employer may require the employee to provide periodic = updates on=20 his/her condition and possible date of return.(65)=20 However, where the employer has granted a fixed period of extended leave = and the=20 employee has not requested additional leave, the employer = cannot=20 require the employee to provide periodic updates. Employers, of course, = may call=20 employees on extended leave to check on their progress or to express = concern for=20 their health.

17. May an employer make disability-related inquiries or require a = medical=20 examinationwhen an employee who has been on leave for a medical=20 condition seeks to return to work?

Yes. If an employer has a reasonable belief that an = employee's=20 present ability to perform essential job functions will be = impaired by=20 a medical condition or that s/he will pose a direct threat due to a = medical=20 condition, the employer may make disability-related inquiries or require = the=20 employee to submit to a medical examination. Any inquiries or = examination,=20 however, must be limited in scope to what is needed to make an = assessment of the=20 employee's ability to work. Usually, inquiries or examinations related = to the=20 specific medical condition for which the employee took leave will be all = that is=20 warranted. The employer may not use the employee's leave as a = justification for=20 making far-ranging disability-related inquiries or requiring an = unrelated=20 medical examination.

Example A: A data entry clerk broke her leg while skiing and = was out=20 of work for four weeks, after which time she returned to work on = crutches. In=20 this case, the employer does not have a reasonable belief, based on = objective=20 evidence, either that the clerk's ability to perform her essential job = functions will be impaired by a medical condition or that she will = pose a=20 direct threat due to a medical condition. The employer, therefore, may = not=20 make any disability-related inquiries or require a medical examination = but=20 generally may ask the clerk how she is doing and express concern about = her=20 injury.

Example B: As the result of problems he was having with his=20 medication, an employee with a known psychiatric disability threatened = several=20 of his co-workers and was disciplined. Shortly thereafter, he was = hospitalized=20 for six weeks for treatment related to the condition. Two days after = his=20 release, the employee returns to work with a note from his doctor = indicating=20 only that he is "cleared to return to work." Because the employer has = a=20 reasonable belief, based on objective evidence, that the employee will = pose a=20 direct threat due to a medical condition, it may ask the employee for=20 additional documentation regarding his medication(s) or treatment or = request=20 that he submit to a medical examination.

D. Periodic Testing and Monitoring

In most instances, an employer's need to make disability-related = inquiries or=20 require medical examinations will be triggered by evidence of=20 current performance problems or observable evidence = suggesting=20 that a particular employee will pose a direct threat. The following = questions,=20 however, address situations in which disability-related inquiries and = medical=20 examinations of employees may be permissible absent such evidence.

18. May employers require periodic medical=20 examinations of employees in positions=20 affecting public safety (e.g., police officers and=20 firefighters)?

Yes. In limited circumstances, periodic medical examinations of = employees in=20 positions affecting public safety that are narrowly tailored to address = specific=20 job-related concerns are permissible.(66)

Example A: A fire department requires employees for whom=20 firefighting is an essential job function to have a comprehensive = visual=20 examination every two years and to have an annual electrocardiogram = because it=20 is concerned that certain visual disorders and heart problems will = affect=20 their ability to do their job without posing a direct threat. These = periodic=20 medical examinations are permitted by the ADA.

Example B: A police department may not periodically test all = of its=20 officers to determine whether they are HIV-positive because a = diagnosis of=20 that condition alone is not likely to result in an inability or = impaired=20 ability to perform essential functions that would result in a direct=20 threat.

Example C: A private security company may require its armed = security=20 officers who are expected to pursue and detain fleeing criminal = suspects to=20 have periodic blood pressure screenings and stress tests because it is = concerned about the risk of harm to the public that could result if an = officer=20 has a sudden stroke.

If an employer decides to terminate or take other adverse action = against an=20 employee with a disability based on the results of a medical = examination, it=20 must demonstrate that the employee is unable to perform his/her = essential job=20 functions or, in fact, poses a direct threat that cannot be eliminated = or=20 reduced by reasonable accommodation.(67)=20 Therefore, when an employer discovers that an employee has a condition = for which=20 it lawfully may test as part of a periodic medical examination, it may = make=20 additional inquiries or require additional medical examinations that are = necessary to determine whether the employee currently is unable = to=20 perform his/her essential job functions or poses a direct threat due to = the=20 condition.

19. May an employer subject an employee, who has been off from work = in an=20 alcohol rehabilitation program, to periodic alcohol = testing=20 when s/he returns to work?

Yes, but only if the employer has a reasonable belief, based on = objective=20 evidence, that the employee will pose a direct threat in the absence of = periodic=20 testing. Such a reasonable belief requires an individualized assessment = of the=20 employee and his/her position and cannot be based on general = assumptions.=20 Employers also may conduct periodic alcohol testing pursuant to "last = chance"=20 agreements.(68)

In determining whether to subject an employee to periodic alcohol = testing (in=20 the absence of a "last chance" agreement), the employer should consider = the=20 safety risks associated with the position the employee holds, the = consequences=20 of the employee's inability or impaired ability to perform his/her job=20 functions, and how recently the event(s) occurred that cause the = employer to=20 believe that the employee will pose a direct threat (e.g., how = long the=20 individual has been an employee, when s/he completed rehabilitation, = whether=20 s/he previously has relapsed). Further, the duration and frequency of = the=20 testing must be designed to address particular safety concerns and = should not be=20 used to harass, intimidate, or retaliate against the employee because of = his/her=20 disability. Where the employee repeatedly has tested negative for = alcohol,=20 continued testing may not be job-related and consistent with business = necessity=20 because the employer no longer may have a reasonable belief = that the=20 employee will pose a direct threat.

Example A: Three months after being hired, a city bus driver = informed his supervisor of his alcoholism and requested leave to = enroll in a=20 rehabilitation program. The driver explained that he had not had a = drink in=20 more than 10 years until he recently started having a couple of beers = before=20 bed to deal with the recent separation from his wife. After four = months of=20 rehabilitation and counseling, the driver was cleared to return to = work. Given=20 the safety risks associated with the bus driver's position, his short = period=20 of employment, and recent completion of rehabilitation, the city can = show that=20 it would be job-related and consistent with business necessity to = subject the=20 driver to frequent periodic alcohol tests following his return to=20 work.

Example B: An attorney has been off from work in a = residential=20 alcohol treatment program for six weeks and has been cleared to return = to=20 work. Her supervisor wants to perform periodic alcohol tests to = determine=20 whether the attorney has resumed drinking. Assuming that there is no = evidence=20 that the attorney will pose a direct threat, the employer cannot show = that=20 periodic alcohol testing would be job-related and consistent with = business=20 necessity.(69)

OTHER ACCEPTABLE DISABILITY-RELATED INQUIRIES AND = MEDICAL=20 EXAMINATIONS OF EMPLOYEES

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

Yes. An EAP counselor may ask employees about their medical = condition(s) if=20 s/he: (1) does not act for or on behalf of the employer; (2) is = obligated to=20 shield any information the employee reveals from decision makers; and, = (3) has=20 no power to affect employment decisions. Many employers contract with = EAP=20 counselors so that employees can voluntarily and confidentially seek=20 professional counseling for personal or work-related problems without = having to=20 be concerned that their employment status will be affected because they = sought=20 help.(71)

21. May an employer make disability-related inquiries and require = medical=20 examinations that are required or necessitated by another = federal law or=20 regulation?

Yes. An employer may make disability-related inquiries and require = employees=20 to submit to medical examinations that are mandated or necessitated by = another=20 federal law or regulation.(72)=20 For example, under federal safety regulations, interstate bus and truck = drivers=20 must undergo medical examinations at least once every two years. = Similarly,=20 airline pilots and flight attendants must continually meet certain = medical=20 requirements.(73)=20 Other federal laws that require medical examinations or medical = inquiries of=20 employees without violating the ADA include:

22. May an employer make disability-related inquiries or conduct = medical=20 examinations that are part of its voluntary wellness=20 program?

Yes. The ADA allows employers to conduct voluntary medical = examinations and=20 activities, including voluntary medical histories, which are part of an = employee=20 health program without having to show that they are job-related and = consistent=20 with business necessity, as long as any medical records acquired as part = of the=20 wellness program are kept confidential and separate from personnel = records.(77)=20 These programs often include blood pressure screening, cholesterol = testing,=20 glaucoma testing, and cancer detection screening. Employees may be asked = disability-related questions and may be given medical examinations = pursuant to=20 such voluntary wellness programs.(78)

A wellness program is "voluntary" as long as an = employer=20 neither requires participation nor penalizes employees who do not=20 participate.

23. May an employer ask employees to voluntarily = self-identify as=20 persons with disabilities for affirmative action purposes?

Yes. An employer may ask employees to voluntarily self-identify as=20 individuals with disabilities when the employer is:

If an employer invites employees to voluntarily self-identify in = connection=20 with the above-mentioned situations, the employer must indicate clearly = and=20 conspicuously on any written questionnaire used for this purpose, or = state=20 clearly (if no written questionnaire is used), that: (1) the specific=20 information requested is intended for use solely in connection with its=20 affirmative action obligations or its voluntary affirmative action = efforts; and,=20 (2) the specific information is being requested on a voluntary basis, = that it=20 will be kept confidential in accordance with the ADA, that refusal to = provide it=20 will not subject the employee to any adverse treatment, and that it will = be used=20 only in accordance with the ADA.(80)

In order to invite self-identification for purposes of an affirmative = action=20 program that is voluntarily undertaken or undertaken pursuant to a law = that=20 encourages (rather than requires) affirmative action, an employer must = be taking=20 some action that actually benefits individuals with disabilities. The = invitation=20 to self-identify also must be necessary in order to provide the = benefit.

INDEX

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

Affirmative action

Airline pilots

Alcohol testing

Application for new job

Centers for Disease Control

Confidentiality

Direct threat

Disability-related inquiry, defined

Documentation

conflicting

insufficient

requests for reasonable accommodation

Employee Assistance Program (EAP)

Employee, defined

Employer's doctor

Failure to respond to disability-related inquiry

Failure to submit to medical examination

Family and Medical Leave Act (FMLA)

Firefighters

Genetic information

HIV

Illegal use of drugs

Information from another person

Job-related and consistent with business necessity, defined

Medical certification

Medical examination, defined

Performance problems

Periodic medical examinations

Periodic updates

Police officers

Pregnancy

Prescription drugs and medications

Procedures and tests

blood analyses

blood pressure screening

breath analyses

cholesterol testing

diagnostic procedures

hair analyses

nerve conduction tests

physical agility tests

physical fitness tests

polygraph examinations

psychological tests

pulmonary function tests

range-of-motion tests

saliva analyses

urine analyses

vision tests

Public safety positions

Reasonable accommodation

Return to work

Sick leave

Voluntary self-identification

Voluntary wellness program

Workers' compensation

1. 42 U.S.C. =A7=A7 12101-12117, 12201-12213 = (1994)(codified as=20 amended).

2. Enforcement Guidance: Preemployment = Disability-Related=20 Questions and Medical Examinations Under the Americans with Disabilities = Act of=20 1990, 8 FEP Manual (BNA) 405:7191 (1995) [hereinafter Preemployment = Questions=20 and Medical Examinations]. This and other ADA guidances are available = through=20 the Internet at http://www.eeoc.gov.

3. Pursuant to the Rehabilitation Act Amendment of = 1992, the=20 ADA's employment standards apply to all nonaffirmative action employment = discrimination claims of individuals with disabilities who are federal = employees=20 or applicants for federal employment. Pub. L. No. 102-569 =A7503(b), 106 = Stat.=20 4344, 4424 (1992) (codified as amended at 29 U.S.C. =A7791(g)(1994)). = Accordingly,=20 the analysis in the guidance applies to federal sector complaints of=20 nonaffirmative action employment discrimination arising under section = 501 of the=20 Rehabilitation Act of 1973. It also applies to complaints of = nonaffirmative=20 action employment discrimination arising under section 503 and to = employment=20 discrimination under section 504 of the Rehabilitation Act. Id. = at =A7=A7793=20 (d), 794(d)(1994).

4. The purpose of this guidance is to explain when = it is=20 permissible for an employer to make a disability-related inquiry or = require a=20 medical examination of an employee. It does not focus on what actions an = employer may take based on what it learns in response to such an inquiry = or=20 after it receives the result of a medical examination.

5. In the ADA legislative history, Congress stated = that an=20 employee's "actual performance on the job is, of course, the best = measure of=20 ability to do the job." S. Rep. No. 101-116, at 39 (1989); H.R. Rep. No. = 101-485, pt. 2, at 75 (1990).

6.  However, where an applicant has an = obvious=20 disability, and the employer has a reasonable belief that s/he will need = a=20 reasonable accommodation to perform specific job functions, the employer = may ask=20 whether the applicant needs a reasonable accommodation and, if so, what = type of=20 accommodation. These same two questions may be asked when an individual=20 voluntarily discloses a nonvisible disability or voluntarily tells the = employer=20 that s/he will need a reasonable accommodation to perform a job. 42 = U.S.C.=20 =A712112(c)(B)(1994); 29 C.F.R. =A71630.13(a)(1998); see = also=20 Preemployment Questions and Medical Examinations, supra note 2, = at 6-8, 8=20 FEP at 405:7193-94; EEOC Enforcement Guidance on the Americans with = Disabilities=20 Act and Psychiatric Disabilities at 13-15, 8 FEP Manual (BNA) 405:7461, = 7467-68=20 (1997)[hereinafter The ADA and Psychiatric Disabilities]; Enforcement = Guidance:=20 Reasonable Accommodation and Undue Hardship Under the Americans with=20 Disabilities Act at 20-21, 8 FEP Manual (BNA) 405:7601, = 7611(1999)[hereinafter=20 Reasonable Accommodation Under the ADA]. Under certain circumstances, an = employer also may ask applicants to self-identify as individuals with=20 disabilities for purposes of its affirmative action program. See=20 Preemployment Questions and Medical Examinations, supra note 2, = at 12-13,=20 8 FEP at 405:7196-97.

7. 42 U.S.C. =A712112(d)(3)(1994); 29 C.F.R.=20 =A71630.14(b)(1998). However, if an individual is screened out because = of a=20 disability, the employer must show that the exclusionary criterion is=20 job-related and consistent with business necessity. 42 U.S.C.=20 =A712112(b)(6)(1994); 29 C.F.R. =A7=A71630.10, 1630.14(b)(3)(1998).

8.  42 U.S.C. =A712112(d)(4)(A)(1994); 29 = C.F.R.=20 =A71630.14(c)(1998).

9. See infra note 77.

10. 42 U.S.C. =A7=A712112(d)(3)(B), (4)(C)(1994); = 29 C.F.R.=20 =A71630.14(b)(1)(1998). The Commission also has interpreted the ADA to = allow=20 employers to disclose medical information to state workers' compensation = offices, state second injury funds, workers' compensation insurance = carriers,=20 and to health care professionals when seeking advice in making = reasonable=20 accommodation determinations. 29 C.F.R. pt. 1630, app. = =A71630.14(b)(1998).=20 Employers also may use medical information for insurance purposes. = Id.=20 See also Preemployment Questions and Medical Examinations, = supra note 2, at 21-23, 8 FEP at 405:7201; EEOC Enforcement = Guidance:=20 Workers' Compensation and the ADA at 7, 8 FEP Manual (BNA) 405:7391, = 7394=20 (1996)[hereinafter Workers' Compensation and the ADA].

11. "Covered entity" means an employer, = employment agency,=20 labor organization, or joint labor management committee. 29 C.F.R.=20 =A71630.2(b)(1998). For simplicity, this guidance refers to all covered = entities=20 as "employers." The definition of "employer" includes persons who are = "agents"=20 of the employer, such as managers, supervisors, or others who act for = the=20 employer (e.g., agencies used to conduct background checks on = applicants=20 and employees). 42 U.S.C. =A712111(5)(1994).

12. 42 U.S.C. =A712112(d)(4)(A)(1994); 29 C.F.R.=20 =A71630.14(c)(1998). See infra Question 5 and accompanying text = for a=20 discussion of what the "job-related and consistent with business = necessity"=20 standard means.

13. See e.g., 42 U.S.C. = =A712112(a)(1994)(no=20 entity shall discriminate against a qualified individual with a = disability=20 because of the disability of such individual).

14. Congress was particularly concerned about = questions=20 that allowed employers to learn which employees have disabilities that = are not=20 apparent from observation. It concluded that the only way to protect = employees=20 with nonvisible disabilities is to prohibit employers from making=20 disability-related inquiries and requiring medical examinations that are = not=20 job-related and consistent with business necessity. See S. Rep. = No.=20 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, pt. 2, at 75 (1990) ("An = inquiry=20 or medical examination that is not job-related serves no legitimate = employer=20 purpose, but simply serves to stigmatize the person with a disability." = A person=20 with cancer "may object merely to being identified, independent of the=20 consequences [since] being identified as [a person with a disability] = often=20 carries both blatant and subtle stigma").

15. See Roe v. Cheyenne Mountain = Resort, 124=20 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 783 (10th Cir. 1997)("it makes = little=20 sense to require an employee to demonstrate that he has a disability to = prevent=20 his employer from inquiring as to whether or not he has a disability"). = Although=20 Roe involved only the issue of disability-related inquiries of = employees,=20 the same rationale applies to medical examinations of employees and to=20 disability-related inquiries and medical examinations of applicants. The = ADA's=20 restrictions on disability-related inquiries and medical examinations = apply to=20 individuals both with and without disabilities at all three stages: = pre-offer,=20 post-offer, and during employment. See also Griffin v. = Steeltek=20 ,Inc., 160 F.3d 591, 595, 8 AD Cas.1249, 1252 (10th Cir. = 1998),=20 cert. denied, 119 S.Ct. 1455, 9 AD Cas. 416 (1999)(a job = applicant=20 without a disability can sue under the ADA regarding medical history = questions);=20 Gonzales v. Sandoval County, 2 F.Supp. 2d 1442, 1445, 8 AD = Cas.1337, 1340=20 (D. N.M. 1998)(plaintiff need not establish disability to state a claim = for a=20 prohibited inquiry under the ADA); Fredenburg v. Contra Costa County=20 Department of Health Services, 172 F.3d 1176, 9 AD Cas. 385 = (9th=20 Cir. 1999)(requiring plaintiffs to prove that they are persons with = disabilities=20 to challenge a medical examination would render =A712112(d)(4)(A) of the = ADA=20 "nugatory"; thus, plaintiffs need not prove that they are qualified = individuals=20 with a disability to bring claims challenging the scope of medical = examinations=20 under the ADA).

Some courts, however, have held that to bring a claim alleging a = violation of=20 the ADA's prohibition against disability-related inquiries and medical=20 examinations, an individual must demonstrate that s/he is a qualified = individual=20 with a disability. See e.g., Armstrong v. Turner = Industries,=20 Inc., 141 F.3d 554, 558, 8 AD Cas. (BNA) 118, 124 (5th = Cir.=20 1998), aff'g 950 F. Supp. 162, 7 AD Cas. 875 (M.D. La. 1996) = (plaintiff=20 must be a qualified individual with a disability to challenge an illegal = preemployment inquiry); Hunter v. Habegger Corp., 139 F.3d=20 901(7th Cir. 1998)("it seems clear that in order to assert = that one=20 has been discriminated against because of an improper inquiry, that = person must=20 also have been otherwise qualified"). For the reasons stated above, it = is the=20 Commission's position that the plain language of the statute explicitly = protects=20 individuals with and without disabilities from improper=20 disability-related inquiries and medical examinations.

16. For example, employers may make = disability-related=20 inquiries and require medical examinations that are required or = necessitated by=20 another federal law or regulation. See infra Question 21 = and=20 accompanying text. Employers also may make disability-related inquiries = and=20 conduct medical examinations that are part of their voluntary wellness = programs.=20 See infra Question 22 and accompanying text.

17. Preemployment Questions and Medical = Examinations,=20 supra note 2, at 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. The prohibition against making = disability-related=20 inquiries applies to inquiries made directly to an employee, as well as = to=20 indirect or surreptitious inquiries such as a search through an = employee's=20 belongings to confirm an employer's suspicions about an employee's = medical=20 condition. See Doe v. Kohn Nast & Graf, P.C., 866 F. = Supp.=20 190, 3 AD Cas. (BNA) 1322 (E.D. Pa. 1994) (employer conducted an = unlawful=20 medical inquiry when it searched the office of an employee it knew was = sick and=20 discovered a letter indicating the employee had AIDS).

21. As used in this guidance, the term "genetic=20 information" has the same definition as "protected genetic information" = in=20 Executive Order 13145. In general, genetic information is information = about an=20 individual's genetic tests, information about the genetic tests of an=20 individual's family members, or information about the occurrence of a = disease,=20 medical condition, or disorder in family members of the individual. = See=20 Exec. Order No. 13,145, To Prohibit Discrimination in Federal Employment = Based=20 on Genetic Information, 65 Fed. Reg. 6877 (Feb. 8, 2000).

22. See Griffin v. Steeltek, Inc., = 160 F.3d=20 591, 594, 8 AD Cas. (BNA) 1249, 1252 (10th Cir. 1998), = cert.=20 denied, 119 S.Ct. 1455, 9 AD. Cas. 416 (1999) (on its = application=20 for employment, employer unlawfully asked: "Have you received workers'=20 compensation or disability payments? If yes, describe.").

23. See Roe v. Cheyenne Mountain = Conference=20 Resort, Inc., 124 F.3d 1221, 7 AD Cas. (BNA) 779 (10th = Cir.=20 1997)(employer had a policy of requiring all employees to report every = drug,=20 including legal prescription drugs); Krocka v. Bransfield, 969 F. = Supp.=20 1073 (N.D. Ill. 1997)(police department implemented a policy of = monitoring=20 employees taking psychotropic medication).

24. Preemployment Questions and Medical = Examinations,=20 supra note 2, at 9, 8 FEP at 405:7195.

25. Preemployment Questions and Medical = Examinations,=20 supra note 2, at 9, 8 FEP at 405:7195.

26. Employers also may maintain and enforce rules = prohibiting employees from being under the influence of alcohol in the = workplace=20 and may conduct alcohol testing for this purpose if they have a = reasonable=20 belief that an employee may be under the influence of alcohol at = work.

27. An individual who currently uses drugs = illegally is not=20 protected under the ADA; therefore, questions about current illegal drug = use are=20 not disability-related inquiries. 42 U.S.C. =A712114(a)(1994); 29 C.F.R. = =A71630.3(a)(1998). However, questions about past addiction to = illegal=20 drugs or questions about whether an employee ever has participated in a=20 rehabilitation program are disability-related because past drug = addiction generally is a disability. Individuals who were addicted to = drugs, but=20 are not currently using drugs illegally, are protected under the ADA. 29 = C.F.R.=20 =A71630.3(b)(1),(2)(1998).

28. Pregnancy is not a disability for purposes of = the ADA.=20 29 C.F.R. pt. 1630, app. =A71630.2(h)(1998). However, discrimination on = that basis=20 may violate the Pregnancy Discrimination Act amendments to Title VII. 42 = U.S.C.=20 =A72000e(k)(1994).

29. Preemployment Questions and Medical = Examinations=20 supra 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, which=20 purportedly measure whether a person believes s/he is telling the truth = in=20 response to a particular inquiry, are not medical examinations. However, = an=20 employer cannot ask disability-related questions as part of the = examination.=20 See Preemployment Questions and Medical Examinations, = supra note=20 2, at 17, 8 FEP at 405:7199.

34. 42 U.S.C. =A712111(4)(1994); 29 C.F.R. = =A71630.2(f)(1998).=20 This term has the same meaning as it does under Title VII of the Civil = Rights=20 Act of 1964. 42 U.S.C. =A72000e(f)(1994).

35. In its guidance on contingent workers, the = Commission=20 lists additional factors that indicate when a worker is an employee and = explains=20 that other aspects of the relationship between the parties may affect = the=20 determination of whether an employee-employer relationship exists. = See=20 EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers = Placed=20 by Temporary Employment Agencies and Other Staffing Firms at=20 4-7, 8 FEP Manual (BNA) 405:7551, 7554-55 (1997).

36. An employee in this situation is an applicant = with=20 respect to rules concerning disability-related inquiries and medical=20 examinations but not for employee benefits (e.g., = retirement,=20 health and life insurance, leave accrual) or other purposes.

37. Where the employer already has medical = information=20 concerning an individual at the pre-offer stage for the new position=20 (e.g., information obtained in connection with the individual's = request=20 for reasonable accommodation in his/her current position) and this = information=20 causes the employer to have a reasonable belief that the individual will = need a=20 reasonable accommodation to perform the functions of the new = job, the=20 employer may ask what type of reasonable accommodation would be needed = to=20 perform the functions of the new job, before extending an offer for that = job. An=20 employer, however, may not use its knowledge of an applicant's = disability to=20 discriminate against him/her. The employer also may not use the fact = that the=20 individual will need a reasonable accommodation in the new position to = deny=20 him/her the new job unless it can show that providing the accommodation = would=20 cause an undue hardship.

38. 42 U.S.C. =A712112(d)(3)(1994); 29 C.F.R.=20 =A71630.14(b)(1998).

39. "Direct threat" means a significant risk of = substantial=20 harm that cannot be eliminated or reduced by reasonable accommodation. = 29 C.F.R.=20 =A71630.2(r)(1998). Direct threat determinations must be based on an=20 individualized assessment of the individual's present ability to safely = perform=20 the essential functions of the job, considering a reasonable medical = judgment=20 relying on the most current medical knowledge and/or best available = objective=20 evidence. Id. To determine whether an employee poses a direct = threat, the=20 following factors should be considered: (1) the duration of the risk; = (2) the=20 nature and severity of the potential harm; (3) the likelihood that = potential=20 harm will occur; and, (4) the imminence of the potential harm. = Id.

40. The Commission explained this standard in its = enforcement guidance on The ADA and Psychiatric Disabilities, = supra note=20 6, at 15, 8 FEP at 405:7468-69.

41. See infra Questions 18 and 19 = and=20 accompanying text.

42. See infra Question 6 and = accompanying=20 text.

43. See Yin v. State of California, = 95 F.3d=20 864, 868, 5 AD Cas. (BNA) 1487, 1489 (9th Cir. 1996)(where = employee=20 missed an inordinate number of days and her performance declined, = employer's=20 request that she submit to a medical examination was job-related and = consistent=20 with business necessity).

44. See also infra Question 12.

45. 42 U.S.C. =A712113 (d)(1994).

46. The most current list was published by HHS, = Centers for=20 Disease Control and Prevention (CDC), in 1998. 63 Fed.Reg. 49359 (Sept. = 15,=20 1998).

47. But see EEOC v. Prevo's Family = Market,=20 Inc., 135 F.3d 1089, 1097, 8 AD Cas. (BNA) 401, 408 (6th = Cir.=20 1998) (employer did not violate the ADA when it required a produce = clerk, who=20 claimed to be HIV-positive, to submit to a medical examination to = determine=20 whether he posed a direct threat). The Commission believes that = Prevo's=20 was wrongly decided because the employer did not base its belief that = the=20 employee posed a direct threat on reasonably available objective = evidence and,=20 therefore, its request that the employee submit to a medical examination = was not=20 job-related and consistent with business necessity. A number of sources, = such as=20 the Centers for Disease Control (http://www.cdc.gov/), a physician or = health care=20 provider knowledgeable about HIV and other infectious diseases, a state = or local=20 health department, a public or university library, or a state or county = medical=20 association can provide information about the likelihood of an employee=20 transmitting HIV or other infectious diseases to co-workers or the = public.

48. This guidance does not affect the obligation = of a=20 physician, under any state law, to report cases of active tuberculosis = to=20 appropriate public health authorities.

49. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 14-15, 8 FEP at 405:7608 for examples of other=20 situations where employers may ask for documentation; see also = id.=20 at 16-17, 8 FEP at 405: 7609 for examples of situations in which an = employer=20 cannot ask for documentation in response to a request = for=20 reasonable accommodation.

50. 29 C.F.R. pt. 1630 app. =A71630.9 (1998); = see=20 also Preemployment Questions and Medical Examinations, = supra note=20 2, at 6, 8 FEP at 405: 7193; ADA and Psychiatric Disabilities, = supra note=20 6, at 22-23, 8 FEP at 405:7472-73; Reasonable Accommodation Under the = ADA,=20 supra note 6, at 12-13, 8 FEP at 405: 7607. See = also=20 Templeton v. Neodata Services, Inc., 162 F.3d 617, 618, 8 AD Cas. = (BNA)=20 1615, 1616 (10th Cir. 1998)(employer's request for updated = medical=20 information was reasonable in light of treating physician's letter = indicating=20 doubt as to employee's ability to return to work as scheduled, and = employer=20 needed the requested information to determine appropriate reasonable=20 accommodation for employee in event she was able to return to work).

51. See Roe v. Cheyenne Mountain = Conference=20 Resort, 124 F.3d 1221, 1229, 7 AD Cas. (BNA) 779, 784 (10th Cir. = 1997)=20 (employer, who implemented a drug and alcohol policy that included many=20 permissible inquiries but also asked employees to inform the employer of = every=20 drug they were taking, including legal prescription drugs, violated the = ADA by=20 failing to demonstrate that this inquiry was job-related and consistent = with=20 business necessity).

52. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 15, 8 FEP at 405:7608.

53. See id. at 13, 8 FEP at = 405:7607. (An=20 "employer may require only the documentation that is needed to establish = that a=20 person has an ADA disability, and that the disability necessitates a = reasonable=20 accommodation." If an employee has more than one disability, an employer = can=20 request information pertaining only to the disability for which the = employee is=20 requesting an accommodation.)

54. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 14-15, 16-17, 8 FEP at 405:7607-09. If the = employee=20 subsequently should request another reasonable accommodation related to = his=20 sickle cell anemia, the employer may ask for reasonable documentation = relating=20 to the new request (if the need is not obvious). The employer, however, = cannot=20 ask again for documentation that the employee has an ADA disability = where the=20 medical information the employee provided in support of his first = reasonable=20 accommodation request established the existence of a long-term = impairment that=20 substantially limits a major life activity. Id. at 16-17, 8 FEP = at 405:=20 7609.

55. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 15-16, 8 FEP at 405:7698; The ADA and = Psychiatric=20 Disabilities, supra note 6, at 23, 8 FEP at 405:7473.

56. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 15, 8 FEP at 405:7608.

57. Since a doctor cannot disclose information = about a=20 patient without his/her permission, an employer must obtain a release = from the=20 employee that will permit the doctor to answer questions. The release = should be=20 clear as to what information will be requested. See Reasonable=20 Accommodation Under the ADA, supra note 6, at 13-14, 8 FEP at=20 405:7607.

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

59. Id. at 16, 8 FEP at 405:7609; The ADA = and=20 Psychiatric Disabilities, supra note 6, at 23, 8 FEP at = 405:7473.

60. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 15 (n.30), 8 FEP at 405:7609.

61. 29 C.F.R. =A71630.2(r)(1998).

62. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 16, 8 FEP at 405:7609; The ADA and Psychiatric=20 Disabilities, supra note 6, at 23, 8 FEP at 405:7473.

63. See Preemployment Questions and = Medical=20 Examinations, supra note 2, at 16, 8 FEP at 405:7198.

64. The questions and answers in this section = address=20 situations in which an employee has used sick, annual, or some other = kind of=20 leave because of a medical condition, but has not taken = leave=20 under the Family and Medical Leave Act (FMLA). 29 = U.S.C.=20 =A72601(1994). Where an employee has been on leave under the FMLA, the = employer=20 must comply with the requirements of that statute. For example, the FMLA = generally does not authorize an employer to make its own determination = of=20 whether an employee is fit to return to work but, rather, states that = the=20 employer must rely on the evaluation done by the employee's own health = care=20 provider. Id. at =A72613(b).

65. See Reasonable Accommodation Under the = ADA,=20 supra note 6, at 57, 8 FEP at 405:7632.

66. See The ADA and Psychiatric = Disabilities,=20 supra note 6, at 16 (n.41), 8 FEP at 405:7469.

67. See supra note 39.

68. Some employers, including some federal = government=20 agencies, commonly use "last chance agreements" in disciplinary actions=20 involving employee use of alcohol. Such agreements typically provide = that, as a=20 condition of continued employment, employees must enter into a = rehabilitation=20 program and submit to periodic alcohol testing.

69. The employer, however, may require the = attorney to=20 submit to an alcohol test if it has objective evidence that she is = violating a=20 workplace policy prohibiting all employees from being under the = influence of=20 alcohol on the job. See supra note 26.

70. Generally, EAPs are confidential programs = designed to=20 assist employees in coping with personal issues (e.g., substance = abuse,=20 grief) that may interfere with their job performance.

71. See Vardiman v. Ford Motor Co., = 981 F.=20 Supp. 1279, 1283, 7 AD Cas. (BNA) 1068, 1072 (E.D. Mo. 1997)(EAP = representative=20 had no power to affect employment decisions and, in fact, was obligated = to=20 shield the decision makers from an employee's personal or substance = abuse=20 problems).

72. 29 C.F.R. 1630.15(e)(1998)("it may be a = defense to a=20 charge of discrimination . . . that a challenged action is required or=20 necessitated by another Federal law or regulation . . . .").

73. See e.g., 14 C.F.R. pt. = 67(1999)(Federal=20 Aviation Administration (FAA) and Department of Transportation (DOT) = medical=20 certifications); 14 C.F.R. pt. 121, app. I (1999)(FAA and DOT drug = testing=20 program); 49 C.F.R. pt. 40 and app. (1999)(procedures for transportation = workplace drug testing programs); 49 C.F.R. 240.207(1996)(Federal = Railroad=20 Administration and DOT procedures for making determination on hearing = and visual=20 acuity); 49 C.F.R. pt. 391(1999)(Federal Highway Administration and DOT = medical=20 certification requirements); 49 C.F.R. pt. 653(1999)(Federal Transit=20 Administration (FTA) procedures for prevention of prohibited drug use in = transit=20 operations); 49 C.F.R. pt. 654(1999)(FTA procedures for prevention of = alcohol=20 abuse in transit operations).

74. 29 U.S.C. =A7=A7651-678 (1994).

75. 30 U.S.C. =A7=A7801-962 (1994).

76. See e.g., The Comprehensive = Environmental=20 Response, Compensation and Liability Act, 42 U.S.C. =A79601(1994).

77. See H.R. Rep. No. 101-485, pt. 2, at = 75 (1990)=20 ("As long as the programs are voluntary and the medical records are = maintained=20 in a confidential manner and not used for the purpose of limiting health = insurance eligibility or preventing occupational advancement, these = activities=20 would fall within the purview of accepted activities.").

78. If a program simply promotes a healthier life = style but=20 does not ask any disability-related questions or require medical = examinations=20 (e.g., a smoking cessation program that is available to anyone = who smokes=20 and only asks participants to disclose how much they smoke), it is not = subject=20 to the ADA's requirements concerning disability-related inquiries and = medical=20 examinations.

79. See Preemployment Questions and = Medical=20 Examinations, supra note 2, at 12, 8 FEP at 405:7196-97.

80. Id.

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