PRE-EMPLOYMENTDISABILITY-RELATED QUESTIONS AND MEDICAL EXAMINATIONS UNDER THE ADA

Web Posted on: December 18, 1997

EEOC ISSUES FINAL ENFORCEMENT GUIDANCE ON PRE-EMPLOYMENTDISABILITY-RELATED QUESTIONS AND MEDICAL EXAMINATIONS UNDER THEAMERICANS WITH DISABILITIES ACT WASHINGTON - The U.S. EqualEmployment Opportunity Commission (EEOC) today issued a finalversion of its "ADA Enforcement Guidance: Pre-employmentDisability Related Questions and Medical Examinations." Theguidance covers the Americans with Disabilities Act’srestrictions on pre-employment disability-related questions andmedical examinations of applicants.

Under the law, employers cannot ask disability-relatedquestions or require medical examinations until after anapplicant has been given a conditional job offer. This isbecause, in the past, applicants were often asked about theirmedical conditions in initial job interviews or on applications.This information was frequently used to exclude applicants withdisabilities before their ability to perform a job was evaluated,even though many of them could have performed the job.

The final guidance is quite similar to the interim guidanceissued by the EEOC on May 19, 1994, although there are severalchanges. Most notably, the final guidance clarifies thatemployers may ask certain questions about reasonableaccommodation at the pre-offer stage. In particular, employerswill be permitted to ask limited questions about reasonableaccommodation if they reasonably believe that the applicant willneed accommodation because of an obvious or voluntarily discloseddisability, or where the applicant has disclosed a need foraccommodation. The final guidance permits employers to getrelevant information in situations where they reasonably believethat accommodation will be needed, while giving applicants thechance to answer practical questions about how they can performthe job.

The final guidance makes clear that employers can continue toask a wide variety of other questions to evaluate whether anapplicant is qualified for a job. For example, employers may askabout an applicant’s ability to perform specific jobfunctions and about non-medical qualifications, such aseducation, work history and required certifications and licenses.Employers also may ask applicants to describe or demonstrate howthey would perform job tasks. In addition, after a conditionaloffer is made, employers may ask disability-related questions andmay require medical examinations of all entering employees in thejob category. In the Enforcement Guidance, the EEOC explains whena question is "disability-related," and when anexamination is "medical." The EEOC also discusses anumber of other issues, such as when an employment offer is areal offer, and employers’ confidentiality obligationsregarding medical information.

According to EEOC Chairman Gilbert Casellas, the guidance"demonstrates the EEOC’s commitment to providingpractical, useful standards that can be understood by allemployers, especially smaller employers." He noted that theguidance is straight-forward, addresses issues most frequentlyraised by employers and EEOC investigators, and is written in aneasy-to-understand question and answer format.

EEOC enforces Title VII of the Civil Rights Act of 1964, whichprohibits employment discrimination based on race, color,religion, sex, or national origin; the Age Discrimination inEmployment Act; the Equal Pay Act; the Americans withDisabilities Act, which prohibits discrimination against peoplewith disabilities in the private sector and state and localgovernments; prohibitions against discrimination affectingindividuals with disabilities in the federal government; andsections of the Civil Rights Act of 1991.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507

ADA ENFORCEMENT GUIDANCE: PRE-EMPLOYMENTDISABILITY-RELATED QUESTIONS AND MEDICALEXAMINATIONS

[TN: footnotes mentioned within this document will be found atthe end of the text.]

Introduction

Under the Americans with Disabilities Act of 1990 (the"ADA"), [footnote 1] an employer may askdisability-related questions and require medical examinations ofan applicant only after the applicant has been given aconditional job offer. This Enforcement Guidance explains theseADA provisions [footnote 2].

Background

In the past, some employment applications and interviewsrequested information about an applicant’s physical and/ormental condition. This information was often used to excludeapplicants with disabilities before their ability to perform thejob was even evaluated.

For example, applicants may have been asked about theirmedical conditions at the same time that they were engaging inother parts of the application process, such as completing awritten job application or having references checked. If anapplicant was then rejected, s/he did not necessarily knowwhether s/he was rejected because of disability, or because ofinsufficient skills or experience or a bad report from areference.

As a result, Congress established a process within the ADA toisolate an employer’s consideration of an applicant’snon-medical qualifications from any consideration of theapplicant’s medical condition.

The Statutory and Regulatory Framework

Under the law, an employer may not ask disability-relatedquestions and may not conduct medical examinations until after itmakes a conditional job offer to the applicant [footnote 3]. Thishelps ensure that an applicant’s possible hidden disability(including a prior history of a disability) is not consideredbefore the employer evaluates an applicant’s non-medicalqualifications. An employer may not ask disability-relatedquestions or require a medical examination pre-offer even if itintends to look at the answers or results only at the post-offerstage.

Although employers may not ask disability-related questions orrequire medical examinations at the pre-offer stage, they may doa wide variety of things to evaluate whether an applicant isqualified for the job, including the following:

Employers may ask about an applicant’s ability to performspecific job functions. For example, an employer may state thephysical requirements of a job (such as the ability to lift acertain amount of weight, or the ability to climb ladders), andask if an applicant can satisfy these requirements.

Employers may ask about an applicant’s non-medicalqualifications and skills, such as the applicant’seducation, work history, and required certifications andlicenses.

Employers may ask applicants to describe or demonstrate howthey would perform job tasks.

Once a conditional job offer is made, the employer may askdisability-related questions and require medical examinations aslong as this is done for all entering employees in that jobcategory. If the employer rejects the applicant after adisability-related question or medical examination, investigatorswill closely scrutinize whether the rejection was based on theresults of that question or examination.

If the question or examination screens out an individualbecause of a disability, the employer must demonstrate that thereason for the rejection is "job-related and consistent withbusiness necessity" [footnote 4].

In addition, if the individual is screened out for safetyreasons, the employer must demonstrate that the individual posesa "direct threat." This means that the individual posesa significant risk of substantial harm to him/herself or others,and that the risk cannot be reduced below the direct threat levelthrough reasonable accommodation [footnote 5].

Medical information must be kept confidential [footnote 6].The ADA contains narrow exceptions for disclosing specific,limited information to supervisors and managers, first aid andsafety personnel, and government officials investigatingcompliance with the ADA. Employers may also disclose medicalinformation to state workers’ compensation offices, statesecond injury funds, or workers’ compensation insurancecarriers in accordance with state workers’ compensation laws[footnote 7] and may use the medical information for insurancepurposes [footnote 8].

The Pre-Offer Stage What is a Disability-Related Question?

Definition: "Disability-RelatedQuestion" means a question that is likely to elicitinformation about a disability.

At the pre-offer stage, an employer cannot ask questions thatare likely to elicit information about a disability. Thisincludes directly asking whether an applicant has a particulardisability. It also means that an employer cannot ask questionsthat are closely related to disability [footnote 9].

On the other hand, if there are many possible answers to aquestion and only some of those answers would containdisability-related information, that question is not"disability-related" [footnote 10].

Below are some commonly asked questions about this area of thelaw.

May an employer ask whether an applicant can perform thejob?

Yes. An employer may ask whether applicants can perform any orall job functions, including whether applicants can perform jobfunctions "with or without reasonable accommodation"[footnote 11].

May an employer ask applicants to describe or demonstratehow they would perform the job (including any needed reasonableaccommodations)?

Yes. An employer may ask applicants to describe how they wouldperform any or all job functions, as long as all applicants inthe job category are asked to do this.

Employers should remember that, if an applicant says that s/hewill need a reasonable accommodation to do a job demonstration,the employer must either: provide a reasonable accommodation thatdoes not create an undue hardship; or allow the applicant tosimply describe how s/he would perform the job function.

May an employer ask a particular applicant to describe ordemonstrate how s/he would perform the job, if other applicantsaren’t asked to do this?

When an employer could reasonably believe that an applicantwill not be able to perform a job function because of a knowndisability, the employer may ask that particular applicant todescribe or demonstrate how s/he would perform the function. Anapplicant’s disability would be a "knowndisability" either because it is obvious (for example, theapplicant uses a wheelchair), or because the applicant hasvoluntarily disclosed that s/he has a hidden disability.

May an employer ask applicants whether they will needreasonable accommodation for the hiring process?

Yes. An employer may tell applicants what the hiring processinvolves (for example, an interview, timed written test, or jobdemonstration), and may ask applicants whether they will need areasonable accommodation for this process.

May an employer ask an applicant for documentation ofhis/her disability when the applicant requests reasonableaccommodation for the hiring process?

Yes. If the need for accommodation is not obvious, an employermay ask an applicant for reasonable documentation about his/herdisability if the applicant requests reasonable accommodation forthe hiring process (such as a request for the employer toreformat an examination, or a request for an accommodation inconnection with a job demonstration). The employer is entitled toknow that the applicant has a covered disability and that s/heneeds an accommodation.

So, the applicant may be required to provide documentationfrom an appropriate professional, such as a doctor or arehabilitation counselor, concerning the applicant’sdisability and functional limitations.

May an employer ask applicants whether they will needreasonable accommodation to perform the functions of the job?

In general, an employer may not ask questions on anapplication or in an interview about whether an applicant willneed reasonable accommodation for a job. This is because thesequestions are likely to elicit whether the applicant has adisability (generally, only people who have disabilities willneed reasonable accommodations).

Example: An employment application may not ask, "Do you need reasonable accommodation to perform this job?"

Example: An employment application may not ask, "Can you do these functions with (blank space provided) without (blank space provided) reasonable accommodation? (Check One)"

Example : An applicant with no known disability is being interviewed for a job. He has not asked for any reasonable accommodation, either for the application process or for the job. The employer may not ask him, "Will you need reasonable accommodation to perform this job?"

However, when an employer could reasonably believe that anapplicant will need reasonable accommodation to perform thefunctions of the job, the employer may ask that applicant certainlimited questions. Specifically, the employer may ask whethers/he needs reasonable accommodation and what type of reasonableaccommodation would be needed to perform the functions of the job[footnote 12]. The employer could ask these questions if: theemployer reasonably believes the applicant will need reasonableaccommodation because of an obvious disability; the employerreasonably believes the applicant will need reasonableaccommodation because of a hidden disability that the applicanthas voluntarily disclosed to the employer; or an applicant hasvoluntarily disclosed to the employer that s/he needs reasonableaccommodation to perform the job.

Example : An individual with diabetes applying for a receptionist position voluntarily discloses that she will need periodic breaks to take medication. The employer may ask the applicant questions about the reasonable accommodation such as how often she will need breaks, and how long the breaks must be. Of course, the employer may not ask any questions about the underlying physical condition.

Example: An applicant with a severe visual impairment applies for a job involving computer work. The employer may ask whether he will need reasonable accommodation to perform the functions of the job. If the applicant answers "no," the employer may not ask additional questions about reasonable accommodation (although, of course, the employer could ask the applicant to describe or demonstrate performance). If the applicant says that he will need accommodation, the employer may ask questions about the type of required accommodation such as, "What will you need?" If the applicant says he needs software that increases the size of text on the computer screen, the employer may ask questions such as, "Who makes that software?" "Do you need a particular brand?" or "Is that software compatible with our computers?" However, the employer may not ask questions about the applicant’s underlying condition. In addition, the employer may not ask reasonable accommodation questions that are unrelated to job functions such as, "Will you need reasonable accommodation to get to the cafeteria?"

An employer may only ask about reasonable accommodation thatis needed now or in the near future. An applicant is not requiredto disclose reasonable accommodations that may be needed in themore distant future.

May an employer ask whether an applicant can meet theemployer’s attendance requirements?

Yes. An employer may state its attendance requirements and askwhether an applicant can meet them. An employer also may askabout an applicant’s prior attendance record (for example,how many days the applicant was absent from his/her last job).These questions are not likely to elicit information about adisability because there may be many reasons unrelated todisability why someone cannot meet attendance requirements or wasfrequently absent from a previous job (for example, an applicantmay have had day-care problems).

An employer also may ask questions designed to detect whetheran applicant abused his/her leave because these questions are notlikely to elicit information about a disability.

Example : An employer may ask an applicant, "How many Mondays or Fridays were you absent last year on leave other than approved vacation leave?"

However, at the pre-offer stage, an employer may not ask howmany days an applicant was sick, because these questions relatedirectly to the severity of an individual’s impairments.Therefore, these questions are likely to elicit information abouta disability.

May an employer ask applicants about their certificationsand licenses?

Yes. An employer may ask an applicant at the pre-offer stagewhether s/he has certifications or licenses required for any jobduties. An employer also may ask an applicant whether s/heintends to get a particular job related certification or license,or why s/he does not have the certification or license. Thesequestions are not likely to elicit information about anapplicant’s disability because there may be a number ofreasons unrelated to disability why someone does not have or doesnot intend to get a - certification/license.

May an employer ask applicants about their arrest orconviction records?

Yes. Questions about an applicant’s arrest or convictionrecords are not likely to elicit information about disabilitybecause there are many reasons unrelated to disability whysomeone may have an arrest / conviction record [footnote 13]. Mayan employer ask questions about an applicant’s impairments?Yes, if the particular question is not likely to elicitinformation about whether the applicant has a disability. It isimportant to remember that not all impairments will bedisabilities; an impairment is a disability only if itsubstantially limits a major life activity. So, an employer mayask an applicant with a broken leg how she broke her leg. Since abroken leg normally is a temporary condition which does not riseto the level of a disability, this question is not likely todisclose whether the applicant has a disability. But, suchquestions as "Do you expect the leg to heal normally?"or "Do you break bones easily?" would bedisability-related. Certainly, an employer may not ask a broadquestion about impairments that is likely to elicit informationabout disability, such as, "What impairments do youhave?"

May an employer ask whether applicants can perform majorlife activities, such as standing, lifting, walking, etc.?

Questions about whether an applicant can perform major lifeactivities are almost always disability-related because they arelikely to elicit information about a disability. For example, ifan applicant cannot stand or walk, it is likely to be a result ofa disability. So, these questions are prohibited at the pre-offerstage unless they are specifically about the ability to performjob functions.

May an employer ask applicants about their workers’compensation history?

No. An employer may not ask applicants about job-relatedinjuries or workers’ compensation history. These questionsrelate directly to the seventy of an applicant’simpairments. Therefore, these questions are likely to elicitinformation about disability.

May an employer ask applicants about their current illegaluse of drugs?

Yes. An employer may ask applicants about current illegal useof drugs [footnote 14] because an individual who currentlyillegally uses drugs is not protected under the ADA (when theemployer acts on the basis of the drug use) [footnote 15]. May anemployer ask applicants about their lawful drug use?

No, if the question is likely to elicit information aboutdisability. Employers should know that many questions aboutcurrent or prior lawful drug use are likely to elicit informationabout a disability, and are therefore impermissible at thepre-offer stage. For example, questions like, "Whatmedications are you currently taking?" or "Have youever taken AZT?" certainly elicit information about whetheran applicant has a disability.

However, some innocuous questions about lawful drug use arenot likely to elicit information about disability.

Example: During her interview, an applicant volunteers to the interviewer that she is coughing and wheezing because her allergies are acting up as a result of pollen in the air. The interviewer, who also has allergies, tells the applicant that he finds "Lemebreathe" (an over-the-counter antihistamine) to be effective, and asks the applicant if she has tried it.

There are many reasons why someone might have tried"Lemebreathe" which have nothing to do with disability.Therefore, this question is not likely to elicit informationabout a disability.

May an employer ask applicants about their lawful drug useif the employer is administering a test for illegal use of drugs?

Yes, if an applicant tests positive for illegal drug use. Inthat case, the employer may validate the test results by askingabout lawful drug use or possible explanations for the positiveresult other than the illegal use of drugs.

Example: If an applicant tests positive for use of a controlled substance, the employer may lawfully ask questions such as, "What medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?"

May an employer ask applicants about their prior illegaldrug use?

Yes, provided that the particular question is not likely toelicit information about a disability. It is important toremember that past addiction to illegal drugs or controlledsubstances is a covered disability under the ADA (as long as theperson is not a current illegal drug user), but past casual useis not a covered disability. Therefore, the question is fine aslong as it does not go to past drug addiction.

Example : An employer may ask, "Have you ever used illegal drugs?" "When is the last time you used illegal drugs?" or "Have you used illegal drugs in the last six months?" These questions are not likely to tell the employer anything about whether the applicant was addicted to drugs.

However, questions that ask how much the applicant used drugsin the past are likely to elicit information about whether theapplicant was a past drug addict. These questions are thereforeimpermissible at the pre-offer stage.

Example : At the pre-offer stage, an employer may not ask an applicant questions such as, "How often did you use illegal drugs in the past?" "Have you ever been addicted to drugs?" "Have you ever been treated for drug addiction?" or "Have you ever been treated for drug abuse?"

May an employer ask applicants about their drinking habits?

Yes, unless the particular question is likely to elicitinformation about alcoholism, which is a disability. An employermay ask an applicant whether s/he drinks alcohol, or whether s/hehas been arrested for driving under the influence alcoholism.However, questions asking how much alcohol an applicant drinks orwhether s/he has participated in an alcohol rehabilitationprogram are likely to elicit information about whether theapplicant has alcoholism.

May an employer ask applicants to "self-identify"as individuals with disabilities for purposes of theemployer’s affirmative action program?

Yes. An employer may invite applicants to voluntarilyself-identify for purposes of the employer’s affirmativeaction program if: the employer is undertaking affirmative actionbecause of a federal, state, or local law (including aveterans’ preference law) that requires affirmative actionfor individuals with disabilities (that is, the law requires someaction to be taken on behalf of such individuals); or theemployer is voluntarily using the information to benefitindividuals with disabilities.

Employers should remember that state or local laws sometimespermit or encourage affirmative action. In those cases, anemployer may invite voluntary self-identification only if theemployer uses the information to benefit individuals withdisabilities.

Are there any special steps an employer should take if itasks applicants to "self-identify" for purposes of theemployer’s affirmative action program?

Yes. If the employer invites applicants to voluntarilyself-identify in connection with providing affirmative action,the employer must do the following:

• state clearly on any written questionnaire, or

• state clearly orally (if no written questionnaire is used),that the information requested is used solely in connection with its affirmative action obligations or efforts; and

• state clearly that the information is being requested on a voluntary basis, that it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with the ADA.

• In order to ensure that the self-identification information is kept confidential, the information must be on a form that is kept separate from the application.

May an employer ask third parties questions it could notask the applicant directly?

No. An employer may not ask a third party (such as a servicethat provides information about workers’ compensationclaims, a state agency, or an applicant’s friends, family,or former employers) any questions that it could not directly askthe applicant.

What is a Medical Examination?

Definition: A "Medical Examination" is a procedureor test that seeks information about an individual’sphysical or mental impairments or health.

At the pre-offer stage, an employer cannot requireexaminations that seek information about physical or mentalimpairments or health. It is not always easy to determine whethersomething is a medical examination. The following factors arehelpful in determining whether a procedure or test is medical:

• Is it administered by a health care professional or someone trained by a health care professional?

• Are the results interpreted by a health care professional or someone trained by a health care professional?

• Is it designed to reveal an impairment or physical or mental health?

• Is the employer trying to determine the applicant’s physical or mental health or impairments?

• Is it invasive (for example, does it require the drawing of blood, urine or breath)?

• Does it measure an applicant’s performance of a task, or does it measure the applicant’s physiological responses to performing the task?

• Is it normally given in a medical setting (for example, a health care professional’s office)?

• Is medical equipment used?

In many cases, a combination of factors will be relevant infiguring out whether a procedure or test is a medicalexamination. In some cases, one factor may be enough to determinethat a procedure or test is medical.

Example : An employer requires applicants to lift a thirty pound box and carry it twenty feet. This is not a medical examination; it is just a test of whether the applicant can perform this task. But, if the employer takes the applicant’s blood pressure or heart rate after the lifting and carrying, the test would be a medical examination because it is measuring the applicant’s physiological response to lifting and carrying, as opposed to the applicant’s ability to lift and carry.

Example : A psychological test is designed to reveal mental illness, but a particular employer says it does not give the test to disclose mental illness (for example, the employer says it uses the test to disclose just tastes and habits).

But, the test also is interpreted by a psychologist, and isroutinely used in a clinical setting to provide evidence thatwould lead to a diagnosis of a mental disorder or impairment (forexample, whether an applicant has paranoid tendencies, or isdepressed). Under these facts, this test is a medicalexamination.

Below are some commonly asked questions about theADA’s restrictions on pre-offer medical examinations.

May an employer require applicants to take physicalagility tests?

Yes. A physical agility test, in which an applicantdemonstrates the ability to perform actual or simulated jobtasks, is not a medical examination under the ADA [footnote 16].

Example: A police department tests police officer applicants’ ability to run through an obstacle course designed to simulate a suspect chase in an urban setting. This is not a medical examination.

May an employer require applicants to take physicalfitness tests?

Yes. A physical fitness test, in which an applicant’sperformance of physical tasks - such as running or lifting - ismeasured, is not a medical examination [footnote 17]. However, ifan employer measures an applicant’s physiological orbiological responses to performance, the test would be medical.

Example: A messenger service tests applicants’ ability to run one mile in 15 minutes. At the end of the run, the employer takes the applicants’ blood pressure and heart rate. Measuring the applicant’s physiological responses makes this a medical examination.

May an employer ask an applicant to provide medicalcertification that s/he can safely perform a physical agility orphysical fitness test?

Yes. Although an employer cannot ask disability-relatedquestions, it may give the applicant a description of the agilityor fitness test and ask the applicant to have a private physiciansimply state whether s/he can safely perform the test.

May an employer ask an applicant to assume liability forinjuries incurred in performing a physical agility or physicalfitness test?

Yes. An employer may ask an applicant to assume responsibilityand release the employer of liability for injuries incurred inperforming a physical agility or fitness test.

May an employer give psychological examinations toapplicants?

Yes, unless the particular examination is medical. Thisdetermination would be based on some of the factors listed above,such as the purpose of the test and the intent of the employer ingiving the test. Psychological examinations are medical if theyprovide evidence that would lead to identifying a mental disorderor impairment (for example, those listed in the AmericanPsychiatric Association’s most recent Diagnostic andStatistical Manual of Mental Disorders (DSM)).

Example: An employer gives applicants the RUOK Test (hypothetical), an examination which reflects whether applicants have characteristics that lead to identifying whether the individual has excessive anxiety, depression, and certain compulsive disorders (DSM-listed conditions). This test is medical. On the other hand, if a test is designed and used to measure only things such as honesty, tastes, and habits, it is not medical.

Example: An employer gives the IFIB Personality Test (hypothetical), an examination designed and used to reflect only whether an applicant is likely to lie. This test, as used by the employer, is not a medical examination.

May an employer give polygraph examinations to applicants?

Although most employers are prohibited by federal and statelaws from giving polygraph examinations, some employers are notprohibited from giving these examinations. Under the ADA,polygraph examinations are not medical examinations [footnote18]. Many times, however, polygraph examinations containdisability-related questions, such as questions about what lawfulmedications the applicant is taking. Employers cannot askdisability-related questions as part of a pre-offer examination,even if the examination is not itself "medical."

May an employer give vision tests to applicants?

Yes, unless the particular test is medical. Evaluatingsomeone’s ability to read labels or distinguish objects aspart of a demonstration of the person’s ability to do thejob is not a medical examination. However, anophthalmologist’s or optometrist’s analysis ofsomeone’s vision is medical.

Similarly, requiring an individual to read an eye chart wouldbe a medical examination.

May an employer give applicants tests to determine illegaluse of controlled substances?

Yes. The ADA specifically states that, for purposes of theADA, tests to determine the current illegal use of controlledsubstances are not considered medical examinations.

May an employer give alcohol tests to applicants?

No. Tests to determine whether and/or how much alcohol anindividual has consumed are medical, and there is no statutoryexemption.

The Post-Offer Stage

After giving a job offer to an applicant, an employer may askdisability-related questions and perform medical examinations.The job offer may be conditioned on the results of post-offerdisability-related questions or medical examinations.

At the "post-offer" stage, an employer may ask aboutan individual’s workers’ compensation history, priorsick leave usage, illnesses / diseases / impairments, and generalphysical and mental health. Disability-related questions andmedical examinations at the post-offer stage do not have to berelated to the job [footnote 19].

If an employer asks post-offer disability-related questions,or requires post-offer medical examinations, it must make surethat it follows certain procedures: all entering employees in thesame job category must be subjected to the examination/inquiry,regardless of disability; [footnote 20] and medical informationobtained must be kept confidential [footnote 21].

Below are some commonly asked questions about thepost-offer stage.

What is considered a real job offer?

Since an employer can ask disability-related questions andrequire medical examinations after a job offer, it is importantthat the job offer be real. A job offer is real if the employerhas evaluated all relevant non-medical information which itreasonably could have obtained and analyzed prior to giving theoffer. Of course, there are times when an employer cannotreasonably obtain and evaluate all non-medical information at thepre-offer stage. If an employer can show that is the case, theoffer would still be considered a real offer.

Example: It may be too costly for a law enforcement employer wishing to administer a polygraph examination to administer a pre-offer examination asking non-disability-related questions, and a post-offer examination asking disability-related questions. In this case, the employer may be able to demonstrate that it could not reasonably obtain and evaluate the non-medical polygraph information at the pre-offer stage.

Example : An applicant might state that his current employer should not be asked for a reference check until the potential employer makes a conditional job offer. In this case, the potential employer could not reasonably obtain and evaluate the non-medical information from the reference at the pre-offer stage.

Do offers have to be limited to current vacancies?

No. An employer may give offers to fill current vacancies orreasonably anticipated openings.

May an employer give offers that exceed the number ofvacancies or reasonably anticipated openings?

Yes. The offers will still be considered real if the employercan demonstrate that it needs to give more offers in order toactually fill vacancies or reasonably anticipated openings. Forexample, an employer may demonstrate that a certain percentage ofthe offerees will likely be disqualified or will withdraw fromthe pool.

Example: A police department may be able to demonstrate that it needs to make offers to 50 applicants for 25 available positions because about half of the offers will likely be revoked based on post-offer medical tests and/or security checks, and because some applicants may voluntarily withdraw from consideration.

Of course, an employer must comply with the ADA when takingpeople out of the pool to fill actual vacancies. The employermust notify an individual (orally or in writing) if his/herplacement into an actual vacancy is in any way adversely affectedby the results of a post-offer medical examination ordisability-related question.

If an individual alleges that disability has affected his/herplacement into an actual vacancy, the EEOC will carefullyscrutinize whether disability was a reason for any adverseaction. If disability was a reason, the EEOC will determinewhether the action was job-related and consistent with businessnecessity.

After an employer has obtained basic medical informationfrom all individuals who have been given conditional offers in ajob category, may it ask specific individuals for more medicalinformation?

Yes, if the follow-up examinations or questions are medicallyrelated to the previously obtained medical information [footnote22].

Example : At the post-offer stage, an employer asks new hires whether they have had back injuries, and learns that some of the individuals have had such injuries. The employer may give medical examinations designed to diagnose back impairments to persons who stated that they had prior back injuries, as long as these examinations are medically related to those injuries.

At the post-offer stage, may an employer ask allindividuals whether they need reasonable accommodation to performthe job?

Yes.

If, at the post-offer stage, someone requests reasonableaccommodation to perform the job, may the employer ask him/herfor documentation of his/her disability?

Yes. If someone requests reasonable accommodation so s/he willbe able to perform a job and the need for the accommodation isnot obvious, the employer may require reasonable documentation ofthe individual’s entitlement to reasonable accommodation.So, the employer may require documentation showing that theindividual has a covered disability, and stating his/herfunctional limitations.

Example: An entering employee states that she will need a 15-minute break every two hours to eat a snack in order to maintain her blood sugar level. The employer may ask her to provide documentation from her doctor showing that: (1) she has an impairment that substantially limits a major life activity; and (2) she actually needs the requested breaks because of the impairment.

Confidentiality

An employer must keep any medical information on applicants oremployees confidential, with the following limited exceptions:supervisors and managers may be told about necessary restrictionson the work or duties of the employee and about necessaryaccommodations; first aid and safety personnel may be told if thedisability might require emergency treatment; governmentofficials investigating compliance with the ADA must be givenrelevant information on request [footnote 23]; employers may giveinformation to state workers’ compensation offices, statesecond injury funds or workers’ compensation insurancecarriers in accordance with state workers’ compensation laws[footnote 24]; and employers may use the information forinsurance purposes [footnote 25].

Below are some commonly asked questions about theADA’s confidentiality requirements.

May medical information be given to decision-makersinvolved in the hiring process?

Yes. Medical information may be given to - and used by -appropriate decision-makers involved in the hiring process sothey can make employment decisions consistent with the ADA. Inaddition, the employer may use the information to determinereasonable accommodations for the individual. For example, theemployer may share the information with a third party, such as ahealth care professional, to determine whether a reasonableaccommodation is possible for a particular individual. Theinformation certainly must be kept confidential.

Of course, the employer may only share the medical informationwith individuals involved in the hiring process (or inimplementing an affirmative action program) who need to know theinformation. For example, in some cases, a number of people maybe involved in evaluating an applicant. Some individuals maysimply be responsible for evaluating an applicant’sreferences; these individuals may have no need to know anapplicant’s medical condition and therefore should not haveaccess to the medical information.

Can an individual voluntarily disclose his/her own medicalinformation to persons beyond those to whom an employer candisclose such information?

Yes, as long as it’s really voluntary. The employercannot request, persuade, coerce, or otherwise pressure theindividual to get him/her to disclose medical information. Doesthe employer’s confidentiality obligation extend to medicalinformation that an individual voluntarily tells the employer?Yes. For example, if an applicant voluntarily discloses bipolardisorder and the need for reasonable accommodation, the employermay not disclose the condition or the applicant’s need foraccommodation to the applicant’s references.

Can medical information be kept in an employee’sregular personnel file?

No. Medical information must be collected and maintained onseparate forms and in separate medical files [footnote 26]. Anemployer should not place any medical-related material in anemployee’s non-medical personnel file. If an employer wantsto put a document in a personnel file, and that document happensto contain some medical information, the employer must simplyremove the medical information from the document before puttingit in the personnel file.

Does the confidentiality obligation end when the person isno longer an applicant or employee?

No, an employer must keep medical information confidentialeven if someone is no longer an applicant (for example, s/hewasn’t hired) or is no longer an employee.

Is an employer required to remove from its personnel filesmedical information obtained before the ADA’s effectivedate?

No.

FOOTNOTES

• 1. Codified as amended at 42 U.S.C. Sections 12101-17, 12201-13 (Supp. V 1994).

2. The analysis in this guidance also applies to federal sector complaints of non-affirmative action employment discrimination arising under section 501 of the Rehabilitation Act of 1973. 29 U.S.C.A. Section 791 (g) (West Supp. 1994). In addition, the analysis applies to complaints of non-affirmative action employment discrimination arising under section 503 and employment discrimination under section 504 of the Rehabilitation Act. 29 U.S.C.A. Sections 793 (d), 794 (d) (West Supp. 1994).

3. 42 U.S.C. Section 12112 (d) (2); 29 C.F.R. Sections 1630.13 (a), 1630.14 (a), (b).

• 4. 42 U.S.C. Section 12112 (b); 29 C.F.R. Sections 1630.10, 1630.14 (b) (3).

  5. 42 U.S.C. Section 12113 (b); See 29 C.F.R. pt. 1630 app.

  Section 1630.2 ｮ.

  6. 29 C.F.R. Section 1630.14 (b) (1) (i-iii).

  7. See 42 U.S.C. Section 12201 (b); 29 C.F.R. pt. 1630 app.

  Section 1630.14 (b).

  8. See 42 U.S.C. Section 12201 ｩ; 29 C.F.R. pt. 1630 app.

  Section 1630.14 (b). For example, an employer may submit medical information to the company’s health insurance carrier if the information is needed to administer a health insurance plan in accordance with Section 501 ｩ of the ADA.

  9. Of course, an employer can always ask about an applicant’s ability to perform the job.

  10. Sometimes, applicants disclose disability-related information in responding to an otherwise lawful pre-offer question. Although the employer has not asked an unlawful question, it still cannot refuse to hire an applicant based on disability unless the reason is "job-related and consistent with business necessity."

  11. However, an employer cannot ask a question in a manner that requires the individual to disclose the need for reasonable accommodation. For example, as described later in this guidance, an employer may not ask, "Can you do these functions with (blank space provided) without (blank space provided) reasonable accommodation? (Check One)"

  12. It should be noted that an employer might lawfully ask questions about the need for reasonable accommodation on the job and then fail to hire the applicant. The rejected applicant may then claim that the refusal to hire was based on the need for accommodation. Under these facts, the EEOC will consider the employer’s pre-offer questions as evidence that the employer knew about the need for reasonable accommodation, and will carefully scrutinize whether the need to provide accommodation was a reason for rejecting the applicant.

  13. However, investigators should be aware that Title VII of the

  Civil Rights Act of 1964, as amended, applies to such questions and that nothing in this Enforcement Guidance relieves an employer of its obligations to comply with Title VII. The Commission has previously provided guidance for investigators to follow concerning an employer’s use of arrest / conviction records. See Policy Guidance No. N-915-061 (9/7/90) ("Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq. (1982)"); EEOC Compliance Manual, Vol. II, Appendices 604-A ("Conviction Records") and 604-B ("Conviction Records-Statistics").

  14. "Drug" means a controlled substance, as defined in schedules I through V of Section 202 of the Controlled Substances Act (21 U.S.C. Section 812). 29 C.F.R. Section 1630.3 (a) (1).

  15. 42 U.S.C. Section 12114 (a); 29 C.F.R. Section 1630.3 (a).

  16. Of course, an employer cannot use a test in violation of other federal civil rights statutes. For example, if a test has an adverse impact under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., it must be shown to be job-related and consistent with business necessity.

  17. Although physical agility tests and physical fitness tests are not "medical" examinations, these tests are still subject to other parts of the ADA. For example, if a physical fitness test which requires applicants to run one mile in ten minutes screens out an applicant on the basis of disability, the employer must be prepared to demonstrate that the test is "job-related and consistent with business necessity."

  18. A polygraph examination purportedly measures whether a person believes s/he is telling the truth in response to a particular inquiry. The examination does not measure health or impairments. Rather, it just measures relative changes in physiological responses of the test taker.

  19. But, if an individual is screened out because of disability, the employer must show that the exclusionary criterion is job-related and consistent with business necessity. 42 U.S.C. Section 12112 (b); 29 C.F.R. Sections 1630.10, 1630.14 (b)

  (3).

  20. 42 U.S.C. Section 12112 (d) (3); 29 C.F.R. Section 1630.14 (b)

  (1), (2).

  21. Id.

  22. Once again, if an examination or inquiry screens out someone because of disability, the exclusionary criteria must be "job-related and consistent with business necessity." Where safety considerations are the reason, the individual can only be screened out because s/he poses a "direct threat."

  23. 29 C.F.R. Section 1630.14 (b) (1) (i-iii).

  24. See 42 U.S.C. Section 12201 (b); 29 C.F.R. pt. 1630 app.

  Section 1630.14 (b).

  25. See 42 U.S.C. Section 12201 ｩ; 29 C.F.R. pt. 1630 app.

  Section 1630.14 (b). For example, an employer may submit medical information to the company’s health insurance carrier if the information is needed to administer a health insurance plan in accordance with Section 501 ｩ of the ADA.

  26. A notation that an individual has taken sick leave or had a doctor’s appointment is not confidential medical information. Of course, documentation of the individual’s diagnosis or symptoms would be medical information.

INDEX

• Affirmative Action ... 28, 29, 46, 50

Alcohol ... 26, 38

Alcohol Tests ... 38

• Alcoholism ... 26

  Arrest or Conviction Records ... 20

  Attendance ... 18

  Broken Leg ... 21

  Confidentiality ... 45-49

  Controlled Substances ... 22-26, 38

  Describe or Demonstrate ... 9, 12, 17

  Direct Threat ... 10, 56

  Disability-Related Question ... 9, 11, 40

  Documentation ... 14, 44, 48

  Drinking Habits ... 26

  Drug Addiction ... 22-26

  Drug Use ... 22-26

  Illegal Drug Use ... 22, 25, 26

  Impairments ... 19-22, 30, 39, 44, 55

  Information Obtained Before the ADA ... 48

  Job Functions ... 8, 12, 13, 16, 22

  Lawful Drug Use ... 23-25

  Liability for Injuries ... 35

  Licenses ... 9, 19

  Major Life Activities ... 21

  Medical Examination ... 8, 30-38, 42

  Medical Files ... 48

  Need for Accommodation ... 14-18, 47

  Physical Agility ... 33, 34

  Physical Fitness ... 33-35

  Polygraph Examinations ... 36-37

  Pool ... 42

  Post-Offer Stage ... 8, 38-44

  Pre-Offer Stage ... 8, 11-29, 30, 40, 41

  Psychological Examinations ... 35

  Real Job Offer ... 39-41

  Reasonable Accommodation ... 10-18, 43-44, 47

  References ... 7, 47

  Self-identify ... 27-29

  Sick ... 19, 39, 56

  Statutory and Regulatory Framework ... 8-10

  Third Parties ... 29

  Vacancies ... 41

  Vision Tests ... 37

  Voluntarily Disclose ... 47

  Voluntary Self-ldentification ... 27

  Workers’ Compensation ... 10, 22, 29, 39, 45

APPENDIX TO ENFORCEMENT GUIDANCE

• 1. SUBJECT: Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations.

2. PURPOSE: This document provides the EEOC’s position under the Americans with Disabilities Act of 1990, on pre-employment disability-related questions and medical examinations.

3. EFFECTIVE DATE: Upon receipt.

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

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

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

• Date: (TN: hand-written) 10/10/95

DISTRIBUTION: CM Holders

TN: Signature affixed here

• Gilbert F. Casellas, Chairman

THIS BRAILLE COPY WAS PRODUCED BY:

BRAILLE LINE, INC.

• 3901 N. Vincent Ave.

Peoria Heights, IL 61614

309-686-0855_

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