General Practice, Solo & Small Firm DivisionTechnology & Practice Guide
The Americans with Disabilities Act
Advising employers on complianceBY STANLEY J. COHN Stanley J. Cohn is a partner with the law firm of Lugenbuhl, Burke, Wheaton, Peck, Rankin and Hubbard in New Orleans, Louisiana. He is on the editorial board of The Compleat Lawyer.
The Americans with Disabilities Act (ADA) provides certain rights for individuals with disabilities. The act affects the areas of employment, public services and transportation, public accommodations, and telecommunications. The employment provisions of the ADA went into effect for all businesses with 25 or more employees on July 26, 1992, and on July 26, 1994, for businesses with 15 or more employees. The Equal Employment Opportunity Commission (EEOC) is charged with enforcement of the ADA.
The ADA generally protects individuals with a "disability," which is defined as (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such impairment; and (3) the perception of having such an impairment (42 U.S.C. 12102(2)). The ADA does not protect individuals who currently engage in the use of illegal drugs (42 U.S.C. 12210(a)). An employer is allowed to test job applicants for drug use (42 U.S.C. 12210(b)); however, the employer may not discriminate against a person who has successfully completed a supervised drug rehabilitation program and no longer engages in the illegal use of drugs (42 U.S.C. 12210(b)(1)-(2)). The ADA prohibits employers from discriminating against a "qualified individual with a disability" because of the disability. Discrimination is prohibited in almost all areas of employment: job applications; hiring; advancement and discharge; compensation; job training; and other terms, conditions, and privileges of employment (42 U.S.C. 12112).
The ADA protects "qualified individuals with a disability" who, with or without reasonable accommodation, can perform the essential functions of the employment position (42 U.S.C. 12111(8)). The employer's judgment as to what are the essential functions of a job is given consideration (42 U.S.C. 12111(8)). Evidence of the essential functions of the job may be a written job description prepared before advertising and interviewing for a job (42 U.S.C. 12111(8)). It is therefore imperative that the employer makes sure that the job descriptions, particularly for physically demanding positions, describe the essential functions of the job and reflect the actual tasks performed by existing employees performing similar jobs.
The employer must comply with all phases of the ADA. The employer should take the following steps to comply with the ADA:
- Prepare a company policy of nondiscrimination.
- Prepare a job description for all positions of employment.
- Prepare an employment application form that complies with the ADA.
- Educate hiring personnel of the ADA so that they know the dos and don'ts of the job interview.
- Institute a policy of the post-offer medical examination.
- Make a final decision on whether to hire or withdraw a conditional offer of employment based on the employment application form, job interview, and post-offer medical examination.
The Company Policy of Nondiscrimination
Every employer should begin compliance of the ADA by reviewing all personnel policies, manuals, and handbooks for any reference that could have an adverse effect on physically or mentally handicapped applicants. The employer's policies should be revised to prohibit discrimination based upon a disability. It would be wise for the employer to include a clause that reasonable accommodations will be made for the job applicants with disabilities unless undue hardship would result.
The Job Description
The job description is the employer's tool to set forth the essential functions of the job that an applicant must be able to perform with or without reasonable accommodation. "Essential functions" mean functions that are not marginal to the job in question (29 C.F.R. 1630, 2(n)). Thus, an employer is allowed to refuse to hire a person with a disability who truly cannot perform an essential function of the job. However, the employer cannot refuse employment because the disabled person is unable to perform a marginal job task.
The employer's judgment regarding what functions are essential in a job description shall be given consideration by a court (29 C.F.R. 1630, 2(n)). However, the employer's judgment as to what is an essential function can be rebutted by evidence from a plaintiff regarding the actual makeup of the job.
A job description that does not reflect the actual functions of the job will have little or no weight in an employment dispute. It is imperative that a company carefully prepare job descriptions. If a job classification includes "heavy" physical labor, the employer should adopt physical criteria based upon current activities performed on a routine basis by its employees. The physical criteria must be job-related, consistent with business necessity, and related to the job applicant's ability to perform the essential functions of the job. For example, a physical criteria of an employee may be that he be able to lift 50 pounds from floor level to his chest, and stoop, stand, and climb for prolonged periods of time. The employer must be able to prove that meeting this criteria is necessary for the person to perform the essential functions of the job.
As a practical matter, the employer should measure the distance for a lift or pull of equipment by employees to ensure the accuracy of the description. Weight calculations should be made of equipment or any other item of considerable weight that is handled on a regular basis. The employer should inquire with supervisors and other employees to obtain this information as well as information about the routine, daily activities conducted by the employees. The employer should document where the data included in the job description was obtained. The employer's efforts will serve as evidence in proving the credibility of the "essential functions" established by your client and set forth in the job description.
The Employment Application
Employment applications are also affected by the ADA. Employment applications may no longer include questions about disabling conditions that could raise the possibility of a prohibited discrimination. The ADA prohibits preemployment inquiries that do not relate to the applicant's ability to perform job-related functions. However, the employer may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job functions (29 C.F.R. 1630.14(a)).
During the pre-offer stage, employers cannot ask applicants if they have a disabling condition or inquire about the severity of a disability. Moreover, the employment application cannot include questions about an applicant's prior litigation or claims history because this information implies the person had prior injuries or illnesses (disabilities). Also, if you contact former employers during the pre-offer stage, you cannot inquire about prior accidents or illnesses of the job applicant. Employers should review their employment application forms to insure that inquiries do not provide prohibited information.
The Job Interview
During the pre-offer period, the same restrictions that affect the employment application apply to the job interview. An employer cannot inquire whether or not an individual has a disability, nor can the employer inquire into the nature or severity of a disability. However, an employer may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, he will be able to perform job-related functions. (See Sidebar: "What Kinds of Questions Does the EEOC Allow?")
An employer may no longer conduct preemployment medical examinations or require the applicant to complete a medical questionnaire during the pre-offer stage (42 U.S.C. 12112(d)). This information obviously inquires into possible disabilities of the applicant. Only post-offer medical examinations and medical history are allowed. An employer, however, may give physical agility, job-related tests to all similarly situated applicants during the pre-offer stage. (See Sidebar: "Checklist: The Pre-Offer Stage.")
The Post-Offer Medical Examination
After the employer has decided that the applicant possesses the necessary qualifications and is worthy of hire, the employer should extend a conditional offer of employment, which triggers the next step in the hiring process: the medical inquiry and examination. The final offer of employment should be conditional on the results of those medical tests and inquiries (42 U.S.C. 12112(d)(3)).
The ADA places several conditions on the use of medical examinations and inquiries. If an employer decides to utilize the medical inquiry and examination option, the inquiry and exam must be required of all applicants (42 U.S.C. 12112(d)(3)). For example, an employer cannot examine an older, smaller-framed individual to check for possible back problems and not examine a robust, 20-year-old applicant because the employer thinks it would be a waste of money to examine a person believed capable of performing the essential functions of the job.
The information obtained as a result of the medical inquiry and exam must be kept strictly confidential (42 U.S.C. 12112(d)(3)). Separate files must be established for each employee segregating medical and non-medical information. The medical file should be kept in a private file cabinet. Those who may access this medical information include: (1) supervisors and managers who need to be informed regarding necessary restrictions on the duties of the employee or regarding necessary accommodations; (2) first aid and safety personnel who may be informed if the disability would require emergency treatment; and (3) government officials investigating compliance with the ADA.
The medical examination may not be used to withdraw the conditional job offer unless the results indicate that the applicant is no longer qualified to perform the job (42 U.S.C. 12112(b), 12113(a)). The employer must be able to establish that the reasons for exclusion are job-related and consistent with business necessity, or that the applicant would present a "direct threat" to the health or safety of the applicant and others in the workplace (42 U.S.C. 12112(b), 12113(a)). Either no reasonable accommodation is available to enable the applicant to perform the essential job functions without a significant risk to health or safety, or such accommodation would create undue hardship (29 C.F.R. 1630.2(o) and (r)).
An employer cannot disqualify an applicant who can currently perform essential job functions because of unsubstantiated speculation about a future risk of injury or compensation claim (29 C.F.R. 1630.2(r)). However, if the employer has specific medical documentation, reflecting a current medical opinion by a doctor whose specialty is in the field of the applicant's disability, indicating that the individual poses a significant, current risk of substantial harm to the health or safety of himself and others in the workplace, the employer may exclude the applicant from employment provided a reasonable accommodation is not available. The employer must meet very strict and stringent requirements to establish that the "direct threat" exists (29 C.F.R. 1630.2(r)):
- The employer must show a significant risk; a high probability of substantial harm if the person is employed.
- The employer must identify the disability that poses a direct threat, considering the duration of the risk; the severity and nature of the harm; the likelihood that the potential harm will occur; the imminence of the potential harm; a current, rather than speculative or remote, nature of the risk; and the use of objective medical or other evidence related to the applicant.
- The employer cannot base a decision that a disability poses a "direct threat" on unfounded fears, stereotypes, or assumptions that an individual with a disability may endanger himself or herself by performing a particular job.
If a reasonable accommodation is available, the employer must determine if supplying the reasonable accommodation would present an undue hardship. The employer could withdraw the offer of employment if an undue hardship is established (29 C.F.R. 1630.15(d)).
The Doctor's Role
The employer, not the doctor, is responsible for making employment decisions and determining if a reasonable accommodation can be utilized for a disabled applicant. In order for the doctor to properly evaluate the applicant, the employer should provide the doctor with specific information about the job. This information should come from the job description. It is a good idea to have the doctor visit the job site to observe firsthand the requirements of the job. If this is not feasible, the employer should provide the doctor with a videotape of employees performing the requirements of the job.
The doctor's opinion regarding the hiring of an applicant should focus on two issues: (1) whether the applicant is currently able to perform the essential job functions, with or without reasonable accommodation; and (2) whether the applicant can perform the essential job functions without posing a "direct threat" to the health or safety of the person or others in the workplace.
If a company utilizes the services of a general practice physician to obtain a medical history and conduct the medical examination, it would be wise to consult with a specialist if a general practice physician finds a particular disability and believes the applicant cannot perform the essential functions of the job. The employer must base a decision to withdraw the conditional offer of employment on sound, current, authoritative medical information. For example, if the applicant retains a specialist who concludes he is capable of performing the essential functions of the job, the EEOC may give greater weight to the opinion of the specialist than that of the employer's general practice physician.
The Injured Employee
An employee who is injured on or off the job, becomes ill, or suffers from any other form of disability during employment is protected by the ADA if the employee can perform the essential functions of the job with or without reasonable accommodation (29 C.F.R. 1630.14(c)). If the employee desires to return to work, the employer may conduct a medical examination and inquiry as long as such an examination and inquiry are job-related and consistent with business necessity.
The ADA imposes regulations on employers affecting how job applicants are screened and interviewed. Inevitably, employers will receive applications from an increasing number of disabled persons seeking reasonable accommodations. The general practitioner who represents business clients must be in a position to counsel his or her clients.
Counsel should recommend that their business clients review company policies, job descriptions, and hiring practices. Physical job requirements set forth in job descriptions should be job-related and consistent with business necessity. The employer should educate medical personnel of the ADA requirements. Make sure the physician conducting the post-offer medical examination truly understands what the essential functions of the job are in order to best evaluate if an applicant or employee can perform those tasks without posing a direct threat to the health or safety of the person or others in the workplace.
It may seem difficult to initiate an ADA program. However, once in place, the prepared employer will be able to comply with all of the ADA requirements. It is up to the employer's attorney to make the appropriate recommendations and get the client prepared.
Sidebar: What Kinds of Questions Does the EEOC Allow?BY SHAWN D. WALLACE Shawn Daughtridge Wallace is a partner with Young, Clement, Rivers & Tisdale, in Charleston, South Carolina, and is certified in South Carolina as a specialist in employment and labor law. The Equal Employment Opportunity Commission (EEOC) issued an interim Enforcement Guidance in May 1994, designed to provide clarification of an employer's ability to make preemployment disability-related inquiries and conduct medical examinations. The Enforcement Guidance is specifically provided to clarify the issue of inquiries at the application and interview stage.
While the guidance does not offer employers a definition of permissible and impermissible questions, it does contain examples illustrating the distinction between disability-related and job-related inquiries.
You Can Ask
- Can you perform the functions of this job (essential and/or marginal), with or without reasonable accommodation? Please describe/demonstrate how you would perform these functions (essential and/or marginal)?
- Do you have a cold? Have you ever tried Tylenol for a fever? How did you break your leg?
- Can you meet the attendance requirements of this job? How many days did you take leave last year? How many days were you absent from work last year? Did you have any unauthorized absences from your job last year? How many Mondays or Fridays were you absent last year on leave other than approved vacation leave? = Do you illegally use drugs? Have you used illegal drugs in the last two years? (While these questions are stated to be permissible in the Enforcement Guidance, caution should be exercised to prevent discrimination on the basis of or an erroneous perception of drug abuse or a history of drug abuse for which rehabilitation has been completed or is in progress.)
- (If an applicant tests positive for use of controlled substances) What medications have you taken that may have resulted in a positive drug test result for this controlled substance? Are you taking this medication pursuant to a lawful prescription?
- Do you have the required licenses to perform this job?
- Do you have 20/20 corrected vision?
- How well can you handle stress? Do you work better or worse under pressure?
- "Life-style" questions such as questions about eating habits, weight, height, and exercise habits are generally permitted if not likely to elicit information about the existence, nature or severity of a disability.
- Do you have a disability that would interfere with your ability to perform the job? Do you have a disability that would prevent you from performing the essential functions of the job with or without reasonable accommodation?
- Do you have AIDS? Do you have asthma?
- How many days were you sick last year? How many separate episodes of sickness did you have last year? How often will you require leave for treatment of your disability?
- How much alcohol do you drink each week? Have you ever been treated for alcohol problems? Are you an alcoholic? How often have you used illegal drugs in the past? Have you ever been treated for drug abuse/drug addiction?
- Have you ever been treated for mental health problems?
- What prescription drugs/medications are your currently taking?
- What is your corrected vision? What is your uncorrected vision?
- Have you sought treatment for your inability to handle stress? Do you ever get ill from stress? Does stress affect your ability to be productive? Have you ever been unable to cope with work-related stress?
- (If an applicant voluntarily discloses a disability) How debilitating is your disability? Does it limit your ability to work? Do you expect your condition to get worse?
- Do you have job-related injuries? What is your workers' compensation history? Have you ever filed for workers' compensation?
- Broad questions about a person's ability to perform major life activities are generally forbidden (e.g., Can you stand? Can you walk?). As this issue was going to press, the EEOC issued its final guidance covering the ADA's restrictions on preemployment disability-related questions and medical examinations. The final guidance is in a question-and-answer format. To obtain a copy, send a request to the EEOC Office of Communications and Legislative Affairs, 1801 L St. NW, Washington, DC 20507; 202/663-4900. Ask for the final EEOC Enforcement Guidance on Preemployment Inquiries under the Americans with Disabilities Act, issued October 10, 1995.
Sidebar: Checklist: The Pre-Offer StageDuring the pre-offer stage, an employer may not:
- ask an applicant if he has a disability
- give a preemployment medical exam
- use an application form that inquires about any disabilities of an applicant
- inquire about an applicant's worker's compensation claims history
- refuse to hire an applicant with a disability that prevents performance of marginal functions
- ask former employers about prior accidents or medical history of the applicant.
- give physical agility, job-related tests to all similarly situated applicants
- ask an applicant to describe or demonstrate how, with or without reasonable accommodation, he or she will be able to perform job-related functions.