Know When to Hold Em’: Medical Inquiries and the ADA Tracie DeFreitas, M.S. JAN Lead Consultant, ADA Specialist

Discussion Topics Limitations on Medical Inquiries and Examinations Under the ADA Pre-Employment, Pre-Offer Pre-Employment, Post-Offer Employment Disclosure Issues

ADA: Medical Inquiries & Exams ADA places limitations on disability-related inquiries and medical examinations Pre-employment (Stop) Post-offer (Go) Employee (Use Caution) Non biased consideration of non- medical qualifications

Pre-Employment, Pre-Offer Cards off the table… most restrictive May not ask disability- related questions Any question likely to elicit information about a disability or medical impairment May not require medical examinations No inquiries about disability: On application forms During job interview In background or reference checks

Pre-Employment, Pre-Offer May ask: About ability to perform job duties (i.e., ability to lift a certain amount of weight, if job-related) About non-medical qualifications and skills, education, experience, certifications, etc. About ability to meet attendance requirements About drinking habits…unless the particular question is likely to elicit information about alcoholism About current and prior illegal drug use…provided the particular question is not likely to elicit information about past addiction

Pre-Employment, Pre-Offer May not ask: About disability, medical impairment…unless accommodation is requested for hiring and disability is not known or obvious About lawful drug use…unless tests positive for illegal drug use and the results need to be validated About ability to perform major life activities (i.e., standing, lifting, walking, etc.)…unless specifically about the ability to perform job functions About workers’ compensation history Previous employers or other sources about an applicant's disability, limitations, history, etc.

Pre-Employment & Disclosure Are applicants required to disclose their medical impairment during hiring? No, with limited exceptions Generally employers may not require applicants to disclose information about disability or medical impairment prior to an offer of employment However, may need to disclose when accommodation is necessary to: complete an on-line application participate in a job interview take an employment test

RA for the Hiring Process May employers ask if reasonable accommodation will be needed for the hiring process? Yes. Employers may tell all applicants what the hiring process involves and ask whether reasonable accommodation will be needed for the process. EEOC (1995), Pre-employment Disability-related Questions & Medical Examinations

Pre-Employment & Disclosure When an accommodation is requested for the hiring process, employer may discuss RA request with candidate Candidate may be expected to: Respond to the employer's questions in a timely manner Explain how the proposed accommodation will enable participation in the hiring process Provide reasonable documentation of disability

Pre-Employment Documentation May employers ask applicants for documentation of disability when RA is requested for the hiring process? Yes. May request reasonable documentation about disability, if the need for accommodation is not known or obvious Entitled to know applicant has a disability and needs accommodation to participate in the hiring process Documentation may be provided by an appropriate professional (i.e., healthcare provider or a rehabilitation counselor) concerning the applicant's disability and functional limitations, but is not required EEOC (1995), Pre-employment Disability-related Questions & Medical Examinations

Pre-Employment, Pre-Offer May employers ask applicants if they will need accommodation to perform job functions? Sometimes. Must have reasonable belief that accommodation will be needed to perform job functions… Because of an obvious disability Because of a hidden disability the applicant has voluntarily disclosed Because the applicant has voluntarily disclosed the need for accommodation EEOC, Pre-employment Disability-Related Questions and Medical Examinations

Pre-Employment, Pre-Offer May employers ask a particular applicant to describe or demonstrate how s/he would perform the job, if other applicants are not asked to do this? Yes…but only if have reasonable belief that the applicant will not be able to perform job functions because of a known disability A known disability is one that is: Obvious Voluntarily disclosed EEOC, Pre-employment Disability-Related Questions and Medical Examinations

Voluntary Self-Identification of Disability May employers ask applicants to voluntarily disclose disability status? Yes, for affirmative action purposes Rehabilitation Act Section 503 Voluntary Self-Identification of Disability Form

Voluntary Self-Identification of Disability Disabilities include, but are not limited to: Blindness • Autism • Bipolar disorder • Post-traumatic stress disorder • Deafness • Cerebral palsy • Major depression • Obsessive compulsive disorder • Cancer • HIV/AIDS • Multiple Sclerosis • Impairments requiring the use of a wheelchair • Diabetes • Epilepsy • Schizophrenia • Muscular dystrophy • Missing limbs or partially missing limbs • Intellectual disability Please check one of the boxes below: Yes, I have a disability (or previously had a disability) No, I don’t have a disability I don’t wish to answer

Pre-Employment Post-Offer

Pre-Employment, Post-Offer Play your hand… least restrictive medical inquiry stage Inquiries and exams do not have to be job- related May make job offer contingent upon receipt of additional medical information Some rules apply: Must ask same inquiries/require exams of all applicants in same job category Must maintain confidentiality of medical information EEOC, Pre-employment Disability-Related Questions and Medical Examinations

Pre-Employment, Post-Offer Qualification standards or selection criteria that screen out or tend to screen out an individual with a disability on the basis of disability must be job-related and consistent with business necessity. Job-related: A legitimate measure or qualification for the specific job, not a general class of jobs Consistent with business necessity: Must relate to the essential functions of the job Must determine if the qualification standard or selection criterion can be met with accommodation

Post-Offer Examinations Procedure or test that seeks information about an individual's physical or mental impairments or health Can require during post-offer, if all others entering the job category are also examined When is a test medical? Administered by a health care professional Interpreted by a health care professional Is invasive Measures physiological responses Designed to reveal an impairment or physical or mental health

Post-Offer Examinations Not Medical Psychological examinations…unless medical Vision tests…unless medical Tests to determine illegal use of controlled substances Physical agility tests Medical Alcohol tests Physical examinations Blood tests

Pre-Employment, Post-Offer May employers ask specific individuals for additional medical information after obtaining basic medical information? Yes, if the follow-up examinations or questions are medically related to the previously obtained medical information EEOC, Pre-employment Disability-Related Questions and Medical Examinations

Medical Inquiries of Employees

Employees & Medical Inquiries Play your cards right Restricted once again in making medical inquiries/requiring examinations Inquiries must be “job-related and consistent with business necessity”

Employees & Medical Inquiries Inquiries/exams will be job-related and consistent with business necessity when employer has reasonable belief based on objective evidence that: Performance of job functions will be impaired by a medical condition; or Employee will pose a direct threat After accommodation request, when disability and/or need for accommodation are not known or obvious Disclosure will be necessary in order to receive accommodation

Employees & Medical Inquiries Proceed with caution…What is known? Are the impairment and limitations known and is the need for accommodation obvious? Has the employee already provided sufficient medical information? Was medical information disclosed in response to counseling for a performance/conduct issue? Is there an apparent impact on performance of duties and did the employee imply the need for accommodation or assistance?

May I, Must I, Should I May initiate the interactive process without being asked if the employer: knows employee has a disability knows, or has reason to know, employee is experiencing workplace problems because of the disability And… knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation

Another Way – Offer Support “Is there anything we can do to support you in performing job duties or meeting performance requirements?” No mention of disability or accommodation = no worrying about the ADA’s medical inquiry rules Extend support Opens the door to engage in the interactive process Good management practice overall JAN ENews, Mother May I? Must I? Should I? JAN ENews, To Ask, or Not to Ask? – Knowing When to Request Medical Information

Sufficient Medical Information Sufficient medical information should substantiate: Existence of impairment and may include nature, severity, and duration Activity or activities the impairment limits/restrictions Impact on job performance Why reasonable accommodation is needed JAN’s Medical Inquiry in Response to an Accommodation Request Questions to help determine whether an employee has a disability Questions to help determine whether an accommodation is needed

Employees & Medical Inquiries Is medical documentation required as part of the interactive process under the ADA? No. There is no requirement to obtain documentation, but employer may Employer may also simply discuss with the individual the nature of his/her disability and functional limitations EEOC, Reasonable Accommodation & Undue Hardship Under the ADA

Employees & Medical Inquiries Can it be required that documentation come from a medical doctor? Can require from an appropriate health care or rehabilitation professional Including: Doctors Physician Assistants Nurses Psychiatrists Psychologists Physical, occupational, speech therapists Vocational rehabilitation specialists Licensed mental health professionals, etc. EEOC, Reasonable Accommodation & Undue Hardship Under the ADA

Employees & Medical Inquiries If work-related modifications are made for employees without disabilities, like flexible scheduling or telework, can medical documentation be required from employees with disabilities who request the same adjustments? Not to receive the same modifications or benefits as those without disabilities Should not have to jump through unnecessary hoops

Employees & Medical Inquiries May employers require employees to go to a health care professional of the employer's (rather than the employee's) choice when employees request a reasonable accommodation? If the employee provides insufficient documentation Should allow employee to correct insufficiency Consult directly with healthcare provider Employer must pay costs if require to see provider of their choosing

More information… JAN’s Requests for Medical Documentation and the ADA at http://askjan.org/ENews/2014/Enews-V12-I4.htm#2 JAN’s To Ask, or Not to Ask? – Knowing When to Request Medical Information at http://askjan.org/ENews/2016/Enews- V14-I1.htm#2 JAN’s Disability Disclosure and Employment at http://AskJAN.org/media/eaps/employmentdisclosureEAP.doc EEOC’s Preemployment Disability-Related Questions and Medical Examinations and the ADA at http://www.eeoc.gov/policy/docs/preemp.html EEOC’s Disability-Related Inquiries and Medical Examinations of Employees Under the ADA at http://www.eeoc.gov/policy/docs/guidance-inquiries.html

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