Employers are accustomed to the basics regarding the Americans with Disabilities Act (ADA), but the details can get tricky especially since employers must navigate the changes brought on by the ADA Amendments Act (ADAAA), which made it easier for individuals with a range of impairments to qualify for protection under the law.
Recently, the Equal Employment Opportunity Commission (EEOC) issued new guidance for employees with specific disabilities to reflect changes to the definition of disability made by the ADAAA. The new question-and-answer documents address cancer, diabetes, epilepsy, and intellectual disabilities—all conditions more likely to fit the definition of disability than they were before the ADAAA.
Here are a few highlights of interest to employers.
Employers are prohibited from asking applicants and employees about their medical conditions and requiring applicants to have a medical exam before a conditional job offer is made. But the guidance makes clear that employers are within the law if they ask applicants about their qualifications—questions like whether an applicant has a driver’s license and whether the applicant can lift up to 50 pounds, travel, work rotating shifts, or operate heavy machinery.
Even though employers can’t lawfully ask applicants about disabilities, applicants sometimes volunteer information during job interviews. When that happens, employers must not ask follow-up questions, but the guidance says that if an employer reasonably believes the applicant will require an accommodation, it may ask if the applicant would need an accommodation and what type. Any information disclosed must be kept confidential.
After an individual with cancer, diabetes, epilepsy, or intellectual disabilities is hired, employers may ask questions or require a medical exam if the employer has noticed performance problems and “reasonably believes that the problems are related to a medical condition,” according to the guidance. “At other times, an employer may ask for medical information when it has observed symptoms, such as extreme fatigue or irritability, or has received reliable information from someone else (for example, a family member or coworker) indicating that the employee may have a medical condition that is causing performance problems.”
The guidance reminds employers, however, that often poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.
The guidance documents for cancer, diabetes, epilepsy, and intellectual disabilities all warn that employers shouldn’t act “on the basis of myths, fears, or stereotypes,” but employers may refuse to hire, terminate, or temporarily restrict the duties of individuals who pose safety concerns if they pose a “direct threat.” The guidance explains that a direct threat “is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.”
In deciding whether someone poses a direct threat, the guidance says employers “must evaluate the individual’s present ability to safely perform the job.” In addition, the employer must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.
“The harm must be serious and likely to occur, not remote and speculative,” the guidance says. “Finally, the employer must determine whether any reasonable accommodation (for example, temporarily limiting an employee’s duties, temporarily reassigning an employee, or placing an employee on leave) would reduce or eliminate the risk.”
The guidance points out that the ADA requires covered employers to provide reasonable accommodations “to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense).”
The guidance document for employees with cancer gives examples of typical accommodations, including leave for doctors’ appointments, treatment, and recuperation; periodic breaks or a private area to rest or take medication; a modified work schedule or shift change; permission to work at home, modification of office temperature; permission to use work phone to call doctors; reallocation or redistribution of marginal tasks to another employee; and reassignment to a vacant position when the employee is no longer able to perform his or her current job.
The guidance for diabetes lists accommodations such as providing a private area to test blood sugar or to administer insulin; a place to rest until blood sugar levels become normal; breaks to eat or drink and take medication; leave for treatment, recuperation, or training on managing diabetes; a modified work schedule or shift change; allowing a person with diabetic neuropathy that makes it difficult to stand for long periods to use a stool; reallocation or redistribution of marginal tasks to another employee; and reassignment to a vacant position when the employee is no longer able to perform his or her current job.
The guidance for epilepsy includes accommodations such as allowing breaks to take medication; leave to seek or recuperate from treatment or to adjust to medication; a private area to rest after having a seizure; a rubber mat or carpet to cushion a fall; adjustments to a work schedule; a consistent start time or a schedule change; a checklist to assist in remembering tasks; permission to bring a service animal to work; someone to drive to meetings and other work-related events; permission to work at home; and reassignment to a vacant position if the employee is no longer able to perform his or her current job.
The guidance for intellectual disabilities lists accommodations such as providing someone to read or interpret application materials for a person who has limited ability to read or to understand complex information; demonstrating, rather than describing, to an applicant what the job requires; modifying tests, training materials, and/or policy manuals; replacing a written test with an “expanded” interview; reallocation of marginal tasks to another employee; detailed instructions and additional training; a job coach; a modified work schedule or shift change; help in understanding job evaluations or disciplinary proceedings; acquisition or modification of equipment or devices; work station placement to aid an employee’s ability to concentrate; and reassignment to a vacant position when the employee is no longer able to perform the current job.