The Americans with Disabilities Act (ADA) prohibits employers from
discriminating against people with disabilities in regard to any employment
practice, or with respect to terms, conditions or privileges of employment. The
Act provides that the use of selection criteria that screen out or tend to
screen out individuals with disabilities is discriminatory, unless the screening
is job related and consistent with business necessity. Thus, as a general rule,
an employer is prohibited from inquiring into the nature or extent of an
employee’s or job applicant’s disabilities.
The Act omits from this
prohibition inquiries and/or examinations that are deemed to be job related and
consistent with business necessity. Further, the Family and Medical Leave Act
(FMLA) authorizes employers to require medical certification from employees
requesting medical leave under the Act;a provision that may implicate the ADA by
requiring employees to provide information related to the existence of a
disability, or to its nature or severity. Thus, it is important for employers to
understand when medical inquiries are appropriate and, when they are, how much
information may be obtained.
The ADA imposes obligations on employers at
three points in the employment process:
1. Pre-Employment,
Pre-Offer
An employer may not require a job applicant to take a
medical examination or to respond to medical inquiries before the employer makes
a job offer. However, an employer may require an applicant to undergo
physical agility tests to determine whether he or she possesses the physical
qualifications for a given job before making an offer, as long as the tests are
not medical examinations. To avoid the prohibition against pre-employment
medical examinations, agility tests must be given to all similarly situated
applicants or employees, regardless of disability.
2.
Pre-Employment, Post-Offer
Employers may condition a job offer on the
satisfactory result of a post-offer medical examination or medical inquiry, as
long as this is required of all entering employees in the same job category. The
post-offer medical examination or inquiry need not be consistent with business.
However, an employer may not refuse to hire an individual with a disability
based on the results of such inquiries, unless the reason for the rejection is
job related and justified by business necessity. The employer must also show
that no reasonable accommodation could be made that would enable the individual
to perform the essential functions of the job.
3. Employee
Medical Examinations and Inquiries
The ADA provides that medical
examinations or inquiries of employees must be job related and consistent with
business necessity, except where voluntary examinations are conducted as part of
an employee health program, or where examinations are required by other federal
laws. Medical examinations or inquiries may be job related and necessary under
several circumstances:
- When there is evidence of a problem related to job performance or safety, a
medical examination may be necessary to determine whether the employee can
perform essential functions with or without an accommodation;
- An examination may be necessary to determine whether individuals in
physically demanding jobs continue to be fit for duty, provided the examination
is job related;
- A medical examination may be required if an employee requests an
accommodation on the basis of an alleged disability, and it is not apparent to
the employer that the individual is disabled;
- Medical information or examinations may be required when an employee wishes
to return to work after an injury or illness, as long as the examination is job
related and consistent with business necessity. Such examinations may be
conducted only to determine whether the individual meets the definition of
“disability,” if an accommodation has been requested, to determine whether the
person can perform essential functions of his or her current job with or without
reasonable accommodation, or to identify an effective accommodation that would
enable the person to perform essential job functions in his or her current (or
previous) job, or in a vacant position for which he or she is
qualified.
When an employee requests a medical leave of
absence, care must be taken to ensure compliance with both the FMLA and the ADA.
Both statutes permit employers to obtain some verification of the need for the
leave, yet both also limit the subject and nature of such inquiries. FMLA
regulations warn employers against seeking more information than is sought in
the optional medical certification form developed by the Department of Labor. In
all instances, information sought must relate only to the serious health
condition for which the current need for leave exists. Additionally, FMLA
regulations provide that if an employee submits a complete medical certification
signed by a health care provider, the employer may not request additional
information from the employee’s health care provider. Rather, an employer who
has reason to doubt the validity of any medical certification must obtain a
second opinion at the employer’s expense.
To ensure compliance with the ADA when verifying an employee’s FMLA leave
request, employers should be careful not to inquire into possible future effects
of an employee’s serious health condition. Employers also should instruct
supervisors not to discuss leave requests or medical conditions with employees,
and should designate someone knowledgeable about leave policies and the ADA as
the person responsible for processing leave requests. Finally, they should limit
the information provided to the employee’s supervisor, noting only that the
employee will be taking leave and will return on a specified date.
Both the ADA and the FMLA also permit some sort of medical inquiry when an
employee returns from a medical leave of absence. Under the FMLA, an employer
may have a uniformly applied policy or practice that requires all similarly
situated employees who take leave for serious health conditions to obtain and
present certification from their health care providers that they are able to
resume work. Any return-to-work physical examination must be job related and
consistent with business necessity, and an employer may seek fitness-for-duty
certification only with regard to the particular health condition that caused
the employee’s need for FMLA leave.
Further, both the ADA and the FMLA place strict limitations on the use of
employee medical information. All information obtained through examinations or
inquiries must be collected and maintained on separate forms, in separate files,
and treated as a confidential record.
