EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

REHAB ACT: ADA Standards--- Medical Examinations--- Medical Disqualification

February 25, 2008

Mr. Mark Doboga
Deputy Associate Director
Center for Talent and Capacity Policy
Strategic Human Resources Policy
U.S. Office of Personnel Management
1900 E St., NW, Room 6551
Washington, DC 20415-9700

Re: Comments on OMB’s Proposed Rule: Medical Qualification Determinations

Dear Mr. Doboga:

The Equal Employment Opportunity Commission (Commission or EEOC) submits this letter to the Office of Personnel Management (OPM) in response to its proposed rule on Medical Qualification Determinations. 72 Fed. Reg. 73,282 (Dec. 27, 2007). The proposed rule amends 5 C.F.R. part 339.

As you know, the EEOC enforces the federal laws that prohibit employment discrimination, including Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., which prohibits employment discrimination on the basis of disability by private and state and local government employers with fifteen or more employees, and Section 501 of the Rehabilitation Act, as amended, 29 U.S.C. § 791, which prohibits discrimination on the basis of disability in Federal sector employment. The EEOC also has responsibility under Executive Order 12067 to coordinate the federal government’s enforcement of laws, executive orders, regulations, and policies that require equal employment opportunity without regard to race, color, religion, sex, national origin, age or disability. 43 Fed. Reg. 28967 (July 5, 1978).

We offer the following comments regarding the agency’s proposed rule.

Compliance with disability laws and regulations

1. Section 339.103 correctly informs agencies that “[a]ctions under this part must be consistent with the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act (ADA) of 1992, as it applies to the Federal government through the Rehabilitation Act.” The section subsequently states, however, that agencies must follow the Commission’s ADA regulations at 29 C.F.R. part 1630 “to the extent [they are] consistent with the Rehabilitation Act.” (Emphasis added.) In fact, under the Rehabilitation Act, agencies must follow the Commission’s ADA regulations in their entirety. Congress amended the Rehabilitation Act in 1992 to state that the nondiscrimination standards under Section 501 “shall be the standards applied under title I of the Americans with Disabilities Act of 1990” (42 U.S.C. 12111 et seq.)(emphasis supplied).¹ The EEOC’s part 1630 ADA regulations, issued pursuant to its legislative rulemaking authority, set forth ADA’s nondiscrimination standards. Accordingly, the statement that agencies must follow the part 1630 regulations “to the extent consistent with the Rehabilitation Act” should be deleted.

2. Section 339.103 further references sections of the EEOC’s ADA regulations that are “particularly relevant to medical qualification determinations,” specifically 29 C.F.R. sections 1630.2(o), 1630.10, 1630.13, and 1630.2(m). We urge OPM to add two additional citations to this list:

• 29 C.F.R. § 1630.14, which specifies the conditions under which examinations and inquiries would not violate the Rehabilitation Act’s general prohibition, both pre-employment and during employment (“job-related and consistent with business necessity”), as set forth in section 1630.13.
• 29 C.F.R. § 1614.203, which states that Federal agencies should serve as model employers of individuals with disabilities and reiterates that the “standards used to determine whether section 501 of the Rehabilitation Act . . . has been violated . . . shall be the standards applied under Titles I and V of the [ADA] . . . as such sections relate to employment.”

In summary, we suggest the following modification to section 339.103 (as indicated by use of italics and strikeout):

Actions under this part must be consistent with the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act (ADA) of 1992, as it applies to the Federal government through the Rehabilitation Act. 29 U.S.C. § 791(g). In addition, the Equal Employment Opportunity Commission (EEOC) has issued regulations stating that Federal government agencies shall be model employers of persons with disabilities. See 29 C.F.R § 1614.203(a). EEOC regulations further provide that ADA standards are to apply to actions alleging violation of the Rehabilitation Act. Id. § 1614.203(b). The equal employment provisions of the ADA in 29 CFR part 1630, which must be followed to the extent consistent with are applicable to matters arising under the Rehabilitation Act.

. . . ;29 CFR 1630.13 (prohibiting (a) pre-employment examination or inquiry related to the existence or nature of a disability and (b) pre-employment medical examination or inquiry of employees) and 29 CFR 1630.14 (specifying the standards for deciding when medical examinations and inquiries would not violate the prohibition in section 1630.13).

Definition of “medical documentation or documentation of a medical condition”

The definition of “medical documentation or documentation of a medical condition” in section 339.104 broadly provides for employer access to substantial medical information from applicants and employees. The definition states that “[a]n acceptable diagnosis must include the following information, or parts identified by the agency as necessary and relevant: . . . .” (Emphasis added.) What follows is an extensive list of seven multi-part items, all of which are deemed a part of a diagnosis that apparently must be provided to the agency.²

This section of the proposed rule conflicts with the Rehabilitation Act’s limitation on medical examinations because it effectively instructs agencies to obtain substantially more medical information than is typically necessary to make an employment decision for any purpose and, therefore, is not “job-related and consistent with business necessity.” Section 102(d)(4) of the ADA provides that an employer “shall not require a medical examination and shall not make inquiries of an employee” unless such examination or inquiry is job-related and consistent with business necessity. (Emphasis added.) Any requirement for information outside of this express statutory limitation violates the Rehabilitation Act.³

Accordingly, we suggest the following modifications to the definition of “medical documentation or documentation of a medical condition”:

Medical documentation or documentation of a medical condition means a statement from a licensed physician or other appropriate practitioner who provides information the agency considers necessary to enable it to make an employment decision. To be acceptable, the diagnosis or clinical impression must be justified according to established diagnostic criteria and the conclusions and recommendations must not be inconsistent with generally accepted professional standards. The determination that the diagnosis meets these criteria is made by or in coordination with a licensed physician or, if appropriate, a practitioner of the same discipline as the one who issued the statement. An acceptable diagnosis Such medical documentation must include as much of the following types of information or parts identified by the agency as is necessary and relevant to making the job-related decision for which the information is being requested:

We further urge that the conjunctive “and” between items six and seven be changed to the disjunctive “or” to indicate that the type and amount of medical information needed in each case may differ and that part 339 does not require submission of documentation meeting all seven of the categories listed in this part.⁴

Disqualification on the basis of medical history

Section 339.206 states that a candidate for employment may not be disqualified solely on the basis of medical history. The section further states, however, that a candidate may be disqualified on the basis of medical history if the condition at issue “is itself disqualifying, recurrence is a reasonable probability, and the duties of the position are such that a recurrence would pose a reasonable probability of substantial harm to the individual or others.” The term “reasonable probability of substantial harm” is less exacting than the ADA/Rehabilitation Act standard of “significant risk" of substantial harm. See 42 U.S.C. § 12111(3); see also 29 C.F.R. §§ 1630.2(r); 1630.2(r), App.⁵ Therefore, we suggest the following revision:

A candidate may not be disqualified for any position solely on the basis of medical history. For positions with medical standards or physical requirements, or positions under medical evaluation programs, a history of a particular medical condition(s) may result in medical disqualification only if the condition(s) at issue is itself disqualifying, recurrence is a reasonable probability, and the duties of the position are such that a recurrence would pose a reasonable probability of substantial harm to the individual or others a significant risk to the health or safety of him or herself or others that cannot be eliminated or reduced by reasonable accommodation.

We also suggest that section 339.103 be revised to include a specific reference to the definition of “direct threat” in the Commission’s ADA regulations, 29 C.F.R. § 1630.2(r).

Authority to require an examination

1. Section 339.301(b), which permits medical examinations of individuals “[p]rior to appointment or selection,” suggests that agencies may conduct medical examinations of applicants prior to their receipt of a conditional job offer.⁶ However, the Rehabilitation Act, consistent with the ADA, prohibits employers from making disability inquiries or conducting medical examinations of job applicants pre-offer. See 42 U.S.C. § 12112(d)(2) & (3); 29 C.F.R. §§ 1630.13(a) & 1630.14(b). We urge that subsection (b)(1) be revised to state the following:

(1) Subsequent to an offer of employment or reemployment conditioned on completion of a medical examination;

2. The language of subsection (b)(2) also requires revision. This subsection allows an employer to conduct medical examinations of current employees “on a regularly recurring, periodic basis after appointment.” The subsection is overbroad. As noted above, the job related and consistent with business necessity standard applies to all employer efforts to obtain medical information from employees. The Commission has stated that any such regularly occurring examinations be limited to persons in positions affecting public safety.⁷ Accordingly, we suggest the following revision:

(2) On a regularly recurring, periodic basis after appointment to jobs that affect public safety where such medical examination is job-related and consistent with business necessity;

3. Finally, sections 339.301(b)(3) and (e)(1) address when an agency may require an employee to undergo a medical or psychiatric examination. As discussed above, the basic rule permitting an examination of an employee is that it must be job related and consistent with business necessity. Accordingly, we suggest revising these sections as follows:

(b)(3) Whenever the agency has a reasonable belief, based on objective evidence, that there is a direct question about an employee’s continued capacity to meet the physical or medical or physical fitness requirements of a position.
. . . . (e)(1) An agency may order a psychiatric examination (including a psychological assessment) only when it has a reasonable belief, based on objective evidence, that the employee appears unable to meet the physical or mental or physical fitness requirements of a position and:
(i) The results of a current general medical examination . . . .,

Thank you for your consideration of our comments and suggested revisions. If you have any questions, please do not hesitate to contact me, at 202-663- ; Associate Legal Counsel, Peggy Mastroianni, 202-663- , or Assistant Legal Counsel, Carol R. Miaskoff, 202-663- .

Sincerely,

/s/

Reed L. Russell
Legal Counsel

Footnotes

¹ Section 791 of the Rehabilitation Act was amended as follows:

The standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment.

29 U.S.C. § 791(g). See, e.g., Coons v. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (“The standards used to determine whether an act of discrimination violated the Rehabilitation Act are the same standards applied under the Americans with Disabilities Act”).

² The list is numbered 1-7 and between 6 and 7 is the word “and,” indicating that the seven items should be read conjunctively. The breadth of the provision is evident from the first item listed: the history of the medical condition, which may or may not be relevant in all – or even most – instances. The second item seeks clinical findings from a recent medical evaluation, including disclosure of all diagnostic tests. An employer may not need copies of X-rays or EKGs to make a determination as to whether an individual requires an accommodation to perform the essential functions of a specific job. See, e.g., Ellshoff v. Dep’t of the Interior, 76 M.S.P.R. 54 (1997) (agency, relying on part 339, improperly denied appellant leave under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., despite her compliance with less demanding FMLA requirements).

³ See, e.g., Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10th Cir. 1997) (employer requirement that employees disclose use of all prescription drugs overbroad; employers are entitled to medical information only when needed for reasons that are job-related and consistent with business necessity).

⁴ This limitation is consistent with how courts have interpreted the medical information disclosure requirement. See, e.g., Carter v. Watkins, 1991 WL 294560 (D.D.C. Dec. 23, 1991) (plaintiff has responsibility to apprise agency of his disability and provide a reasonable medical basis for, and description of, accommodation measures); see also Fong v. Dep’t of Treasury, 705 F. Supp. 41, 45 (D.D.C.1989) (alcoholic employee must “provide his employer with an adequate understanding of his condition ... [and] provide an explanation and warning of future absences before they occurred).

⁵ The “reasonable probability of substantial harm” standard was created by the courts prior to the enactment of the ADA to ensure that individuals with disabilities were not unfairly excluded from employment opportunities because of a greater risk of injury. See Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir. 1985). Two years later, in Sch. Bd. Of Nassau Cty. v. Arline, 480 U.S. 273, 285, n.14 (1987), the Supreme Court first articulated the factors that now define the “direct threat” standard under the ADA and the Rehabilitation Act. In fact, when it made “direct threat” a defense under Title I of the ADA, Congress made it clear that it intended to adopt the standard set forth in Arline. See House Report No. 101-485(II) at 56-57 (May 15, 1990) (citing Arline, the Report stated: “The standard to be used in determining whether there is a direct threat is whether the person poses a significant, risk to the safety of others or to property, not a speculative or remote risk, and that no reasonable accommodation is available that can remove the risk”). Therefore, the “significant risk,” rather than the “reasonable probability” language, should be used in defining “direct threat” under both the ADA and the Rehabilitation Act. See, e.g., Jarvis v. Potter, 500 F.3d 1113, 1121, 1123 (10th Cir. 2007) (federal sector/Postal Service case, citing the Commission’s regulation at 29 C.F.R. § 1630.2(r)); Branham v. Snow, 392 F.3d 896, 905-06 (7th Cir. 2004) (Department of the Treasury, citing the same regulation).

⁶ Although section 339.301(b) states that an agency’s ability to conduct a medical examination is “[s]ubject to § 339.103,” which notes the applicability of the Rehabilitation Act and ADA, we do not believe that this general reference suffices. The better option would be to redraft section 339.301 to make it expressly consistent with the requirements of the Rehabilitation Act.

⁷ See ENFORCEMENT GUIDANCE ON DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT, text at section D, Q. 18 & 19 (available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html).

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