EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Americans with Disabilities Act: Periodic Testing

February 15, 2008

Dear:

This is in response to your letters dated November 5, and November 13, 2007, to the Equal Employment Opportunity Commission (EEOC or Commission) asking whether the Americans with Disabilities Act (ADA)⁽¹⁾ permits the [City] to adopt a policy requiring all intrastate bus drivers, who transport more than 12 million passengers a year, to undergo the same periodic medical examinations that the Federal Motor Carrier Safety Administration (FMCSA) mandates for interstate drivers. You believe that administering the same tests to your bus drivers would allow the city to identify potentially dangerous health conditions that would otherwise jeopardize the safety of the drivers, their riders, and the general public. You also note that city bus drivers are considered "safety-sensitive" employees and are subject to drug and alcohol testing under the Omnibus Transportation Employee Testing Act (OTETA).

A. Disability-Related Inquiries and Medical Examinations in General

Title I of the ADA strictly limits the circumstances under which employers may make disability-related inquiries or require medical examinations of applicants and employees. Except in certain situations not applicable here, an employer may not ask applicants disability-related questions or require them to undergo medical examinations before a job offer is made. Once the employer has obtained and evaluated all non-medical information and has made a "real offer" of employment, it may require all entering employees in the same job category to answer disability-related questions or submit to medical examinations and may conduct medically related follow-up examinations. The rules concerning pre-employment disability-related questions and medical examinations may be found in EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (1995), available at http://www.eeoc.gov/policy/docs/preemp.html.

Disability-related inquiries and medical examinations of employees generally are permitted only where they are job-related and consistent with business necessity. Usually, this means that an employer knows about a particular employee's medical condition, has observed problems, and reasonably can attribute the problems to a medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his ability to perform essential job functions or will pose a direct threat. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 26, 2000) (hereafter "Guidance"), http://www.eeoc.gov/policy/docs/qanda-inquiries.html, at Q. 5.

Your inquiry raises the issue of whether periodic testing of all bus drivers is permitted in the absence of a reasonable belief about a particular employee's ability to perform a job. Although EEOC has endorsed periodic medical testing of employees in very limited circumstances discussed below, nothing in the ADA's text or legislative history, or EEOC regulations and enforcement guidance documents specifically addresses the factual circumstances raised by your letter. However, we hope you will find the following principles helpful.

B. Permissible Periodic Medical Testing of Employees

EEOC has endorsed periodic testing of employees in essentially three situations. In the first two, periodic medical examinations must be narrowly tailored to address specific job-related concerns. In the third situation – when the testing is required or necessitated by another federal law –it must conform to the particular federal law or regulation at issue.

1. Periodic Testing of Employees in "Positions Affecting Public Safety"

First, an employer may require employees in positions affecting public safety to report the use of prescription medications or to undergo periodic testing or monitoring when it is able to demonstrate that the inability or impaired ability to perform job-related tasks will result in a direct threat (i.e., significant risk of substantial harm). Id. In the answers to questions 8 and 18 of the Guidance, the EEOC mentioned specific types of jobs as examples of positions for which public safety is integral to the job: police officers, firefighters, armed private security officers, and airline pilots. Police officers and firefighters already had been recognized as positions affecting public safety in prior EEOC guidance. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997), http://www.eeoc.gov/policy/docs/psych.html, at n. 41. Armed security guards often perform functions similar to police officers, and periodic testing of airline pilots generally is regulated by federal law.

City bus drivers are similar in some respects to employees in other recognized positions affecting public safety in that the failure to perform essential functions may result in safety risks to others. For example, both bus drivers and airline pilots are responsible for transporting passengers safely and for protecting nonpassengers from dangers associated with accidents. Nevertheless, the difference in magnitude of the potential harm resulting from a bus versus an airline accident makes the job of a city bus driver qualitatively different from the job of an airline pilot. Additionally, unlike the job of a police officer or firefighter, the job of a bus driver does not exist for the primary and specific purpose of protecting the general public from harm by outside forces and preventing significant injury and harm. Therefore, we do not believe that bus drivers fit squarely within the very narrow definition of "positions affecting public safety" as described in our guidance.

2. Periodic Alcohol Testing

The second instance in which the Commission has formally endorsed some kind of periodic testing of employees is where the risks associated with a position, whether or not the position is one "affecting public safety," combined with objective evidence that the employer has about an employee's recent alcohol rehabilitation, give rise to a reasonable belief that periodic alcohol testing of the employee is necessary to avoid a direct threat. Guidance at Q. 19. In such a situation, the employer does not need objective evidence that an employee is or may be under the influence of alcohol. However, the employer should consider the "safety risks associated with the position the employee holds, the consequences of the employee's inability or impaired ability to perform his/her job functions, and how recently the event(s) occurred that cause the employer to believe that the employee may pose a direct threat." Id. As an example, the Commission stated that an employer could subject a city bus driver with a history of alcoholism who recently started drinking again and who subsequently has completed a rehabilitation program to frequent periodic alcohol tests following his return to work. Id.at Example A.

3. Periodic Testing that Is Required or Necessitated by Another Federal Law

Finally, the ADA permits employers to make disability-related inquiries and require medical examinations of employees that are mandated or necessitated by another federal law or regulation. You state that because city bus drivers operate buses that are identical to the commercial vehicles covered by FMCSA regulations, the [city] should be able to conduct the same periodic tests. Further, you state that because bus drivers are considered safety-sensitive employees subject to drug and alcohol testing under the OTETA, the ADA should be interpreted to permit periodic medical examinations of these employees.

The FMCSA, which explicitly excludes from its coverage the "United States, any State, and any political subdivision of a State," is responsible for medical certification of drivers of commercial motor vehicles⁽²⁾ operating in interstatecommerce, as defined by 49 C.F.R. § 390.5. Because the [city] is a political subdivision of the [state] and its bus drivers operate only in intrastate commerce, the city is not required to conduct the periodic testing mandated by the FMCSA.

The OTETA, 49 C.F.R. Part 40, requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroad, mass transit, and other transportation industries. Each Department of Transportation (DOT) agency, such as the FMCSA, outlines who must conduct drug and alcohol tests, how and when to conduct those tests, and what procedures to use when testing. The FMCSA rules, which apply to safety-sensitive employees who operate commercial motor vehicles requiring a commercial driver's license, specifically require employers to conduct such tests pre-employment, randomly, after certain accidents, and when there is a reasonable suspicion of alcohol and drug abuse. Assuming that the [city]'s bus drivers are covered employees, the ADA does not prohibit the periodic drug and alcohol testing required by DOT. Federal regulations that require drug and alcohol testing, however, cannot be used to justify more extensive testing, such as periodic medical examinations.

C. Alternatives to Periodic Testing of all Bus Drivers

There are several measures that the [city] may take, short of periodically testing all bus drivers, which would help to ensure the safety of passengers and members of the public. After making a conditional offer, the city can require all bus drivers to answer a medical history questionnaire and undergo a medical examination prior to beginning employment. The city also may ask specific applicants additional questions or require them to have a follow-up medical examination if the information sought is medically related to previously-obtained medical information. For example, if the city learns post offer that an applicant takes medication for a condition that may impair his ability to drive a bus safely, it may ask follow-up questions or request documentation to determine the nature and severity of the medication's side effects, how those side effects affect his ability to drive, and whether he has been restricted from driving in the past when taking this medication.

As described in part A, above, the city could ask disability-related questions or require medical examinations of a specific bus driver when it has a reasonable belief based on objective evidence that the driver will be unable to perform the job or will pose a direct threat due to a medical condition. Typically, disability-related questions or medical examinations permitted under these circumstances will not occur on a repeated or periodic basis. So, for example, if the city had a reasonable belief that a bus driver who had sustained an injury might not be able to perform the essential functions of the job, it could ask the driver for documentation of his ability to return to work. The city also could ask disability-related questions or require a medical examination if it reasonably believes that a driver was involved in a safety-sensitive incident (e.g., inexplicably lost control of his vehicle) because of a medical condition. In both of these situations, if the city receives sufficient documentation regarding the driver's ability to drive safely, the city would not be able to subject the driver to further inquiries or examinations. However, as we recognized in an informal discussion letter, an employer might be able to justify subjecting an individual with a history of not using medication or another mitigating measure to periodic medical examinations or inquiries under certain circumstances. See EEOC Informal Discussion Letter, January 5, 2007, at https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-178 .⁽³⁾ This limited monitoring would be permitted only where there is objective evidence that the employee's history of failing to use the mitigating measure and the nature of the particular job give rise to a reasonable belief that periodic monitoring is necessary to avoid a direct threat. Specifically, the city would have to show that there may be serious and imminent consequences if a driver failed to use a mitigating measure and that it has evidence of recent noncompliance.

The city also may offer all bus drivers voluntary wellness programs that would enable them to identify medical conditions that may affect their ability to perform their jobs.⁽⁴⁾ Id. at Q. 22. Finally, the city may periodically require all bus drivers to certify⁽⁵⁾ that they are able to safely perform their jobs, with or without reasonable accommodation, because asking for such a certification would not constitute a disability-related question.

I hope this information is helpful to you. This letter is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.

Footnotes

(1) Although you reference Section 501 of the Rehabilitation Act, Title I of the ADA applies to state and local governments with 15 or more employees.

(2) A commercial motor vehicle is defined as any motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle generally has a gross weight of at least 10,000 pounds and is designed to transport more than 15 passengers. Id.

(3) Although this letter addresses the obligations of federal agencies under Section 501 of the Rehabilitation Act, the standards governing employment discrimination on the basis of disability are the same under Section 501 and Title I of the ADA. See 29 U.S.C. § 791(g).

(4) The collection and use of information as part of a voluntary wellness program must comply with regulations governing permitted and prohibited medical examinations and inquiries under the ADA. See 29 C.F.R. §§ 1630.13 and 1630.14.

(5) To encourage honest reporting, the city might state that a false certification would be grounds for discharge or discipline, including loss of pay and/or benefits.

This page was last modified on February 11, 2008.

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