EEOC REVISES PUBLICATIONS ABOUT SPECIFIC DISABILITIES

The U.S. Equal Employment Opportunity Commission (EEOC) has updated a series of question-and-answer documents addressing particular disabilities in the workplace.  These documents explain how the Americans with Disabilities Act (ADA) applies to job applicants and employees who have or had cancer, diabetes, epilepsy and intellectual disabilities. These documents explain:

• when an employer may ask an applicant or employee questions about his condition and how it should treat voluntary disclosures;
• what types of reasonable accommodations employees may need;
• how an employer should handle safety concerns about applicants and employees; and
• how an employer can ensure that no employee is harassed because of a disability.

Answers to the questions include the following statements:

• An employer may not ask questions about an applicant’s medical condition or require an applicant to have a medical examination before it makes a conditional job offer.
• The ADA does not require applicants to voluntarily disclose that they have or had a disability unless they will need a reasonable accommodation for the application process.
• The employer must keep any information an applicant discloses about his medical condition confidential.
• After making a job offer, an employer may ask questions about the applicant’s health (including questions about the applicant’s disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination).
• The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination.
• Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition.
• If the employer has a reasonable belief that the employee may be unable to perform her job or may pose a direct threat to herself or others, the employer may ask for medical information.
• With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee.
• Telling co-workers that an employee is receiving a reasonable accommodation amounts to a disclosure that the employee has a disability.
• Some employees may need one or more of the following accommodations:
• An employer may request reasonable documentation where a disability or the need for reasonable accommodation is not known or obvious.
• An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property).
• Granting leave to an employee who is unable to provide a fixed date of return may be a reasonable accommodation.

• leave for doctors’ appointments and/or to seek or recuperate from treatment
• periodic breaks or a private area to rest or to take medication
• modified work schedule or shift change
• permission to work at home
• modification of office temperature
• permission to use work telephone to call doctors where the employer’s usual practice is to prohibit personal calls
• reallocation or redistribution of marginal tasks to another employee
• reassignment to a vacant position when the employer is no longer able to perform her current job

While these documents do not contain any surprises, they can serve as reminders for all disability management professionals, supervisors and managers.