HR MATTERS E-TIPS
THIS WEEK'S E-TIP: ADA Medical Inquiries (Part 2 of 2)
June 13, 2006, Volume 8, No. 24
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^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ THIS WEEK'S E-TIP: ADA Medical Inquiries (Part 2 of 2) Last week's E-Tips addressed the ADA's restrictions on job applicants and medical inquiries. This week's E-Tips discusses what you can, and cannot, ask current employees. Plus, you'll get three tips to help you make sure you do not ask inappropriate, or even illegal, medical questions.
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THIS WEEK'S E-TIP: ADA Medical Inquiries (Part 2 of 2) The ADA is more than just a disability discrimination and accommodation law. It also limits what you can ask applicants and employees about their medical conditions, even if they are not disabled. In last week's E-Tips, you learned what medical inquiries employers can and cannot ask at the preemployment and post-offer stages. (If you missed that issue, please click here for a copy.) This week's E-Tips explains the restrictions on current employees and medical examinations and provides three tips to help you comply with the ADA's requirements. * Employees and Medical Inquiries * Current employees arguably are subject to even greater protections from medical inquiries and examinations than applicants. Under the ADA, you may require an employee to answer medical inquiries or take a medical examination only if you can show that the inquiries or examination are "job-related and consistent with business necessity." What that phrase means has been the subject of debate, since neither the ADA nor the regulations define it. According to an EEOC guidance, a medical inquiry or examination of an employee is considered job-related and consistent with business necessity when: An employee is having difficulty performing the job effectively, such as when the employee falls asleep on the job, is absent excessively, or the quantity or quality of work declines. An employee is injured or becomes ill and a question is raised about the employee's ability to perform the essential functions of the job. An employee requests an accommodation for an alleged disability. The employer reasonably believes that an employee's medical condition will cause the employee to pose a direct threat. The employer is given information by a credible third party that an employee has a medical condition, or the employer observes symptoms indicating an employee may have a medical condition that will impair his ability to perform the essential job duties or will pose a direct threat. The inquiry or examination is required by law, such as medical examinations required by OSHA or the Department of Transportation regulations governing interstate bus and truck drivers, railroad engineers, and airline pilots. Practically speaking, the ADA's limitations mean that if you cannot meet one of the above criteria, you cannot test employees for any specific serious diseases or require employees to report that they have any serious diseases. The ADA does allow you to conduct voluntary medical examinations as part of an employee health or wellness program. However, participation in the program truly must be voluntary and the information obtained kept in a confidential medical file, separate from other personnel information (like all other employee medical information). * Reporting Legal Drug Use * Most employers are understandably concerned about the use of prescription and over-the-counter drugs that may impair an employee's ability to perform work safely and effectively. However, you should not have a blanket requirement that employees report the use of all medications since this restriction would not be considered job-related and consistent with business necessity. Instead, you should require only the reporting of medications that could affect the employee's ability to perform work safely or correctly. (Note that the EEOC, in a guidance, appears to take a more limited approach and has indicated that an employer may ask only employees in "public safety" positions to disclose when they are using prescription drugs if the use would affect or impair their ability to perform their jobs. However, neither the ADA nor its regulations specifically prohibit employers from asking other employees not involved in public safety about legal drug use that might affect job performance.) In addition, you can suggest that employees ask their doctor or pharmacist about possible effects of medications and, on that basis, determine whether they should inform the employer.
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* Review Your Medical Inquiry and Examination Process * How concerned should you be about violating the ADA's medical inquiry requirements? As a practical matter, you are not likely to be sued just because you make improper medical inquiries of your applicants or employees. (Though you should note that a few courts have found employers liable for monetary damages based on solely the employer's inappropriate medical inquiries, even though no discrimination took place.) However, if you are sued by a disabled applicant or employee, your medical inquiries and examinations likely will be subject to scrutiny and can be used as evidence of ADA violations. In addition, intrusive medical questioning, unrelated to job performance, can alienate applicants and employees and lead to employee relations problems. So to protect against ADA liability, you should: Review your employment application forms and standard pre- offer interview questions to make sure they do not contain medical inquiries. Limit post-offer medical inquiries to necessary, job-related information only. As discussed above, the assumption could be made that unnecessary medical information is used, or will be used, in your decision-making. Train managers about the ADA's limits on medical inquiries of both applicants and employees so that they do not ask inappropriate questions or make decisions improperly based on medical information.
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Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find more information employee medical inquiries in Medical Procedures, Chapter 203, note 10.
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