Don’t do this with disability related inquiries and medical exams.
Today’s blog entry is one of those situations where I spent some of my morning determining what I was going to blog on. Then, late breaking news intervened, and so I had to change it up. My original plan was to blog on a case I discussed in last week’s blog entry, which can be found here and dealt with associational discrimination. However, thanks to my colleague in the Deaf and Hard of Hearing Bar Association, Mark Sorokin, Esq., I found out that the EEOC just put out two days ago a guidance on coronavirus in the workplace using its pre-existing guidance on an influenza pandemic. How could we not discuss? In the paragraphs below, §§I-IV, you will see both what the EEOC says and simultaneously my thoughts. At the end of this blog entry, I have a separate thoughts/Takeaway section as well. The blog entry does get divided into categories, and they are: definitional issues; disability related inquiries and medical examinations scheme; direct threat; and thoughts/takeaways. The reader is free to concentrate on any or all of the categories.
- The ADA prohibitions on disability related inquiries and medical examinations continue. Remember, the disability related inquiries and medical examination scheme applies to all applicants and employees regardless of whether they have a disability. We discussed that scheme here.
- The reasonable accommodation requirement also continues during this pandemic.
- The ADA’s prohibition on excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a direct threat continues.
- A disability related inquiry is an inquiry likely to elicit information about a disability. See this blog entry for example.
- A medical examination is a procedure or test that seeks information about an individual’s physical or mental impairment or health. Medical examinations come up quite frequently in this blog, such as here. Factors to consider are: whether the test involves the use of medical equipment; whether it is invasive; whether it is designed to reveal the distance of a physical or mental impairment; and whether it is given or interpreted by a medical professional.
- All information about applicants or employees obtained through disability related inquiries by medical examinations must be kept confidential. Any information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.
- A reasonable accommodation is any change in the work environment that allows an individual with the disability to have an equal opportunity to apply for a job, perform a job’s essential function, or enjoy equal benefits and privileges of employment. I prefer to think of it as getting the person with a disability to the same starting line as a person without a disability.
- An undue hardship is an accommodation that would result in a significant difficulty or expense for the employer after considering: 1) the nature and cost of the accommodation; 2) the resources available to the employer; and 3) the operation of the employer’s business.
The Disability related Inquiries and Medical Examination Scheme
- The ADA, as we already know, has a scheme for dealing with disability related inquiries and medical examinations and it works like this. First, before a conditional offer of employment, disability related inquiries and medical exams are prohibited. Second, after a conditional offer of employment but before an individual begins working, the ADA allows for disability related inquiries and medical exams if all entering employees in the same job category are subject to the same inquiries and examinations. Finally, once a person is employed, the only time disability related inquiries and medical examinations are allowed is if it is job-related and consistent with business necessity. We have talked about job-related and consistent with business necessity numerous times in this blog entry, such as here. In particular, the EEOC says that a disability related inquiry medical examination is job-related and consistent with business necessity when the employer has a reasonable belief based upon objective evidence that: A) an employee’s ability to perform essential job functions is impaired by a medical condition; or B) an employee will pose a direct threat due to a medical condition. As we have mentioned before in our blog entry, when it comes to figuring out direct threat, be sure you have read this case before making any final determinations.
- After a conditional job offer, an employer may screen job applicants for symptoms of Covid-19 so long as they do so for all entering employees in the same type of job. Such screening may include the taking of temperature. Keep in mind, there are those with Covid-19 that do not have a fever.
- A direct threat is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. If a person is a direct threat, they are no longer protected by the ADA (courts will say that they are no longer qualified).
- Direct threat must be based upon objective, factual information, and not on subjective perceptions or irrational fears about a specific disability or disabilities. In figuring out direct threat, various factors are considered, including: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that potential harm will occur; and 4) the eminence of the potential harm. We have seen these factors come up before, such as in this blog entry.
- Did I mention Chevron v. Echazabal?
- As of March 2020, based upon CDC guidance and public health authorities, COVID-19 does rise to the direct threat standard. Down the road, that may change but not now.
- Since Covid-19 is a direct threat, an employer has the right to send home an employee with Covid-19 or symptoms associated with it.
- Since Covid-19 is a direct threat, an employer may ask employees who report feeling ill at work or call in sick, questions about their symptoms in order to determine if they have or may have Covid-19. Those symptoms include, for example, fever, chills, cough, shorteness of breath, or sore throat. Keep in mind, the technical assistance memorandums for title I, title II, title III all have language in them precluding a fishing expedition. So, an employer will want to keep any such inquiries focused on Covid-19 symptoms and not engage in a fishing expedition.
- Since Covid-19 is a direct threat, employers can measure employees body temperature. Remember, the fact that an employee had a fever or other symptoms is subject to the ADA confidentiality requirements.
- Since the Covid-19 is a direct threat, employers may follow CDC advice and state/local public health authorities regarding any information needed to permit an employee’s return to the workplace after visiting a specified location, whether it be for business or personal reasons. Don’t forget about such information being narrowly focused as mentioned above.
- When it comes to the reasonable accommodation process, reasonable accommodation should be addressed as soon as possible. However, the EEOC recognizes that Covid-19 has created extraordinary circumstances and therefore, delay in discussing requests and providing accommodations can occur where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible. In other words, don’t forget about the interactive process.
- Since Covid-19 is a direct threat, an employer may delay the start date of an applicant who has Covid-19 or symptoms associated with it.
- The ADA does not interfere with employers following recommendations of the CDC or public health authorities and employers should feel free to follow those recommendations. Keep in mind, the public health authorities are following the CDC recommendations pretty closely.
- Since Covid-19 is a direct threat, an employer can withdraw a job offer when it needs the applicant to start immediately but the individual has Covid-19 or symptoms of it.
- The CDC’s coronavirus page can be found here. The White House also has a page with resources on it as well, here.
- In general and as a matter of preventive law, when trying to figure out what is a disability related inquiry it really helps if you can involve persons with disabilities in the process. Their antenna for disability related inquiries is very sensitive.
- Chevron v. Echazabal is mandatory reading.
- The EEOC regulations allow for direct threat to self or others. However, the DOJ regulations, which apply to title II and title III of the ADA, only allow for direct threat to others.
- Reasonable accommodation is a title I term. Reasonable modification is the title II and title III term. Their meanings are essentially the same; they only differ by context.
- Don’t get thrown by trying to figure out significant difficulty or expense. For difficulty, think the title II and title III concepts of fundamental alteration. I once heard an EEOC commissioner refer to that as logistical undue hardship. For significant expense, remember the entire resources of the entity get considered. So, even though something may cost a lot of money, they still may not be a sufficient defense for an undue hardship in the financial sense. See this blog entry.
- If you are doing disability related inquiries and medical exams subsequent to a conditional job offer, don’t forget you have to be doing it for all entering employees in the same job category and all such employees have to be subject to the same inquiries or exams.
- Since businesses are suffering greatly, there may be a temptation to have the employee or prospective applicant pay for the medical exam or disability related inquiry. Preventive law demands you don’t take that approach. See this blog entry.
- One thing that will be very interesting to see is what happens if the White House decides to focus on getting businesses going but by doing so, the science indicates a much greater spread of the epidemic. In that situation, businesses will have to make a choice between best infection control practices and stopping the epidemic v. being open for business. As a matter of preventive law, businesses should think strongly about focusing on the science if they want to prevent all kinds of liability.
- If a person is a direct threat, reasonable accommodations are in order up to the point of direct threat.
- The EEOC technical assistance memorandum for title I at §6.6 prohibits fishing expeditions. That is, keep any coronavirus assessment medical exams and/or disability related inquiry narrowly focused on that and don’t go fishing.
- The EEOC believes employers can get a little slack with reasonable accommodation process at the moment in light of everything that is going on. Preventive law says don’t take too long for that. With respect to what case law says is too long for the interactive process, cases are all over the place. Preventive law demands sooner is better than later.
- Interactive process!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
- What if you are a title II or a title III entity and you are trying to figure out how to deal with clients or customers who may have Covid-19? As far as I can tell, the DOJ has not issued any guidances in this area. The EEOC guidelines we are discussing here are informative but not dispositive. Title II and title III also use the term direct threat. It essentially means the same as in title I except it only focuses on direct threat to others. Figuring out a direct threat is the same process regardless of the title of the ADA involved. So, you may be able to utilize many of the same things the EEOC says is okay in the context of title II and title III. However, I would not apply the EEOC guidance to title II and title III situations without getting knowledgeable ADA legal counsel involved first.
- Another title II or title III issue that may come up is that the coronavirus may play with existing accommodations. For example, for those who are oral deaf or hard of hearing, CART services are a tremendous help. What if the coronavirus impacts on the ability to get a CART provider? Well, under the effective communication rules for title II, primary consideration has to be given to the way the particular individual communicates. Under title III, those regulations allow for more of a give-and-take with the place of public accommodation having the ultimate say. The recipe here is making sure you use the interactive process to reach a win-win solution. Finally, remember the ADA is a nondelegable duty and the ADA obligations don’t stop just because of the coronavirus.