On May 15, 2013, the EEOC issued four revised publications related to protections against disability discrimination. The revisions address changes to the definition of disability made by the ADA Amendments Act of 2008 (“ADAAA”), which took effect on January 1, 2009. The ADAAA’s expanded definition of disability makes it easier for the EEOC and private plaintiffs’ counsel to assert that individuals with a wide range of im pairments including cancer, diabetes, epilepsy and intellectual disabilities are protected by the ADA. The revised documents not only address the definitional changes, but also are designed to advance the agency’s 2013-2016 Strategic Plan that we previously blogged about here.
For employers facing EEOC litigation, this new guidance ought to be required reading.
The revised guidelines discuss general information about cancer, diabetes, epilepsy and intellectual disabilities and provide answers to questions such as when an employer may obtain medical information from employees and applicants; what types of reasonable accommodations individuals with these disabilities may need; and how an employer should prevent and correct disability harassment. The documents also set forth hypothetical situations and discuss how an employer should handle them. These documents are a “must read” for all employers as they offer insight into the EEOC’s expectations of employers with regards to accommodating individuals with these four medical conditions.
Our read of the new guidance provides a good summary of the EEOC’s “dos and don’ts” for employers:
Before An Offer Of Employment Is Made
- Employers cannot ask questions about whether an applicant has or had cancer, diabetes, epilepsy or an intellectual impairment including whether the applicant is undergoing any treatment, taking prescription drugs, or has ever taken leave for medical treatment.
- Employers can, however, ask questions pertaining to the qualifications of the job, such as how much the applicant can lift, whether he or she is able to travel, able to drive or operate heavy machinery, whether he or she can read and so on.
- Employers cannot require an applicant to voluntarily disclose that they have or had one of the four conditions unless they will need a reasonable accommodation for the application process, i.e. an entrance exam.
- If an applicant voluntarily discloses he or she has one of the four conditions, an employer cannot ask follow-up questions unless the employer reasonably believes that the applicant will require an accommodation to perform the job because of his or her medical condition.
After An Offer Of Employment Is Made
- Employers may require medical examination for applicants with these four conditions, so long as they treat all applicants for the same type of job equally.
- When an employee discloses his or her condition after the offer of employment is made, employers may ask follow-up questions about the condition to determine the extent of the disability and may send the applicant for a follow-up medical examination or ask him or her to submit documents answering questions about the applicant’s ability to perform the job functions.
- Employers may not withdraw an offer of employment to an applicant with any of these four conditions if the applicant is able to perform the essential functions of a job, with or without reasonable accommodations, without posing a direct threat to the health or safety of himself or others.
Other Employer Considerations During Employment
- Employers generally can ask disability related questions or require an employee to have a medical examination when they know about the employee’s medical condition or have observed symptoms indicating the employee may have a medical condition that is causing performance issues.
- Employers can also ask about an employee’s condition if they have a reasonable belief the employee will be unable to perform the essential functions of his or her job, to the extent the information is needed for (1) a reasonable accommodation, (2) to verify employee’s use of a sick leave, or (3) enable the employee to participate in a voluntary wellness plan.
- Employers can require an employee on leave due to a medical condition to provide medical documentation or have a medical examination before returning to work, but only to make an assessment of the employee’s present ability to perform his or her job and do it safely.
- Employers must keep medical information and any reasonable accommodations provided to an employee confidential. Employers can only disclose this information to other employees when necessary to provide a reasonable accommodation, provide emergency medical treatment, investigate compliance with ADA or for workers’ compensation or insurance purposes.
Accommodating Employees With These Four Conditions
In each of these documents, the EEOC stresses that there are no “magic words” an employee must use to request an accommodation, and the request may come from anyone including the employee, friend, family member or doctor.
The EEOC highlights potential accommodations for each of the four conditions. Potential reasonable accommodations for cancer, epilepsy, and diabetes are similar and include: (1) Leave for doctors’ appointments and/or treatment; (2) Breaks to rest or take medications/private place to rest; (3) Modified work schedule or shift change; (4) Permission to work at home; (5) Modification of office temperature; (6) Permission to use work telephone to call doctors; (7) Reallocation or redistribution of tasks to another employee; or (8) Reassignment to a vacant position when the employee is no longer able to perform his current job.
Additionally, the EEOC notes that diabetics may need to be provided a stool if they are unable to stand for long periods of time, and individuals with epilepsy may need a rubber matt or cushion to fall, someone to drive them to meetings or other work related events and may require the use of a service animal.
Individuals with intellectual disabilities may need slightly different accommodations according to the EEOC, including: (1) Reallocation of marginal task to another employee; (2) Training or detailed instruction to do the job, including having the training or supervisor give instructions at a slower place, use of charts to aid comprehension, provision of additional time to complete training or additional training and/or a job coach; (3) Modified work schedule, work station placement or shift change; or (4) Acquisition or modification of equipment or devices.
Importantly, the EEOC concedes that accommodations are not required if providing an accommodation would cause the employer an undue hardship. Similarly, the employer does not have to provide the best accommodation, so long as the accommodation provided meets the employee’s needs.
Notably, and perhaps in conflict with existing federal law, for extended leaves of absence, the EEOC stresses that an employer cannot deny an employee’s request for leave even if the employee is unable to provide a fixed date of return, and advises that employers should communicate with an employee throughout the leave period in order to receive periodic updates. Once the leave has been extended multiple times, it would potentially be permissible for the employer to reevaluate whether continued leave would constitute an undue hardship.
Finally, the EEOC sets forth instructions on how employers should prevent harassment and retaliation. The EEOC states employers should make clear to all employees that they will not tolerate harassment. This can be done either through written policies, handbooks, staff meetings and periodic trainings or a combination. Employers also should ask employees to report any complaints to management, and thoroughly investigate all complaints of harassment or retaliation.
Implications For Employers
The EEOC’s new documents are a must read for all employers. The documents highlight considerations for employers when interviewing and hiring applicants or offering reasonable accommodations to employees with these medical conditions. Not surprisingly, the EEOC articulates an aggressive approach and employee-friendly approach to its views of an employer’s legal obligations in this context.
In the EEOC’s Strategic Plan, one of the EEOC’s stated goals is to focus on emerging or developing issues such as ADA and ADAAA issues. Because of this and these revised documents, employers should expect increased scrutiny with regards to their treatment of disabled applicants and employees and their compliance with the ADA and ADAAA.