EEOC Informal Discussion Letter

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.

ADA: Disability-Related Inquiries and Medical Examinations

October 1, 2015

XXXXXXX
XXXXXXX

Dear XXXXXXX:

This is in response to your March 16, 2015 letter to the Boston Area Office of the Equal Employment Opportunity Commission (EEOC or Commission) seeking guidance on employment procedures in relation to conditional job offers, disability-related inquiries, and non-medical examinations.  You have asked whether your client's "healthy work styles" programs, which provide employers with a variety of services, including job placement assessments or fitness screenings for job suitability, comply with the Americans with Disabilities Act (ADA).  You provided us with a description of the programs available to employers, and specifically, you ask the following: (1) whether a disability-related inquiry is made during any stage of the "healthy work styles" programs; (2) whether the job placement assessment, as described, amounts to an agility test or a medical examination; and (3) whether the ADA permits follow-up medical inquiries in the post-offer stage.

Background

You state that your client, Central Maine Conditioning Clinic (CMCC), employs licensed Certified Athletic Trainers, mid-level providers, and physicians to provide "healthy work styles" programs to employers in Maine.  CMCC "healthy work styles" programs include job placement assessments, physical demand assessments, employee physical conditioning, workplace accommodation consulting, and injured worker case management. You indicate that CMCC provides these services during three phases of employment: "post-conditional offer of employment, return to work following work-related or non work-related disability leave of absence, and accommodation in the workplace[1]."

(1) Post-Conditional Offer of Employment

You describe two services, the "Bump Up Model" and the "Traditional Medical Model," that CMCC provides to employers who have made applicants a post-conditional offer of employment. These two programs evaluate the suitability of an applicant to begin employment based on the ability to complete a Job Placement Assessment (JPA).

Bump Up Model

According to the description provided in your letter, an employer who participates in the "Bump Up" model sends all conditionally hired applicants for a certain job classification to CMCC for evaluation before extending a final offer of employment.  Under the "Bump Up" Model, all conditionally hired applicants are required to complete a Physical Activity Readiness Questionnaire (PARQ) and a JPA.  

You state that all applicants are first required to complete the PARQ in order to assess whether an individual is ready to become more physically active. The PARQ consists of seven "yes" or "no" questions that address an applicant's health history.  Based on the responses provided, an applicant is either scheduled to move onto the second phase and complete the JPA, or the applicant is instructed to consult a physician to evaluate whether he or she is able to become more physically active and perform the JPA. Applicants instructed to visit a doctor must obtain medical clearance for participation in the JPA from either a personal physician or a physician provided by CMCC.  The JPA process is discontinued for any applicant who does not obtain a medical clearance.

Following the successful completion of the PARQ or receipt of a medical clearance, the applicant will perform the JPA.  You state that the JPA requires each applicant to demonstrate the ability to perform the activities required of the job.  CMCC creates the series of activities based on the job description and duties required for a particular job.  CMCC reports the assessment results to the employer.

Traditional Medical Model

According to the description provided in your letter, an employer who participates in the "Traditional Medical" model requires all conditionally hired applicants to complete an extensive health history questionnaire and participate in a clinical examination. If the medical examination demonstrates that the applicant is fit to perform the JPA, the applicant will then complete the required activities.

(2) Return to Work Following Disability Leave of Absence

You state that CMCC also provides a "healthy work styles" program that evaluates current employees who seek to return to work following a work-related or non work-related leave of absence caused by a disability.  At the request of an employer, CMCC will perform a "readiness to work" physical demand assessment (PDA) of the returning employee.  This assessment, like the JPA for new hires, requires that an employee demonstrate the ability to perform all job activities. If the employee successfully completes the job activities, he or she is returned to work without further inquiry.  However, if the employee is unable to perform all of the job activities in the assessment, CMCC will meet with the employer and employee to discuss the results.

ADA Principles: Disability-Related Inquiries and Medical Examinations

As you are aware, the ADA limits employer access to applicant medical information and aims to isolate the consideration of an applicant's medical conditions until after an offer of employment.  Specifically, the ADA restricts when an employer may make disability-related inquiries and conduct medical examinations.  A disability-related inquiry is any question that is likely to elicit information about a disability.  A medical examination is a procedure or test designed to measure an individual's physical or mental impairments or health.

The ADA prohibits employers from making disability-related inquiries and requiring medical examinations prior to giving an applicant an offer of employment.  However, this limitation does not apply in the post-offer stage.  After a conditional job offer, an employer may ask disability-related questions and require medical examinations so long as all applicants who receive a conditional job offer in a particular job category are required to respond to the same disability-related questions and take the same medical exam.  Once employment begins, an employer may conduct disability-related inquiries and medical examinations if they are job-related and consistent with business necessity.  Generally, this means that an employer has a reasonable belief that an employee's ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition. An employer's reasonable belief must be based on objective evidence that the employer may either observed directly or learn from a credible third party who provides reliable information regarding an employee's medical condition. However, such a belief requires an assessment of the employee and his or her position and cannot be based on general assumptions.[2]

While the ADA prohibits employers from asking disability-related inquiries and requiring medical examinations prior to making a conditional job offer, all non-medical tests, including agility tests and physical fitness tests, must be conducted and evaluated pre-offer.  An agility test is a non-medical test that requires an applicant to demonstrate his or her ability to perform actual or simulated job tasks, and a physical fitness test is a non-medical test that measures the applicant's performance of physical tasks.  However, while agility and fitness tests are not medical exams, if an employer measures the applicant's physiological or biological responses to the performance of job tasks or physical tasks, the exam is medical and must be conducted post-offer.[3] 

Application of ADA Principles

(1) Disability-Related Inquiries

The seven questions that applicants are required to answer in the PARQ are likely to elicit information about a disability and amount to disability-related inquiries that may not be made prior to a conditional offer of employment.  For example, applicants are asked whether they have been prescribed any drugs for blood pressure or heart conditions.  This question may elicit a response that reveals the existence of a certain disability that requires prescribed medication. 

(2) Medical and Non-Medical Examinations

The JPA described in your letter, which requires an applicant to perform a series of job activities but that does not measure an applicant's physiological responses to the performance of these activities, is an agility test.  Under the ADA, agility tests are not medical examinations.  Generally, an agility test, like all non-medical tests, should be completed in the pre-offer stage. 

Though the Commission has not addressed the specific scenario presented in your letter, an employer arguably may require both disability-related questions and a non-medical test to be performed in the post-offer stage where responses to disability-related inquiries are necessary for the safe or successful completion of the non-medical test.  For example, under the ADA, an employer may require an applicant to answer disability-related questions and take a drug test post-offer.  Drug tests are non-medical exams, and therefore, should generally be administered in the pre-offer stage only.  However, in order to avoid liability and ensure that a positive drug test result is caused by the presence of illegal drugs and not lawfully prescribed drugs, an employer may need to ask disability-related questions regarding an applicant's prescription drug use, such as whether the applicant takes any medication that could result in a positive test result.  Because an employer is unable to ask an applicant about his or her medications prior to making a conditional job offer, an employer may conduct a drug test in the post-offer stage.[4]

Similarly, there are times when an employer may require applicants to answer disability-related questions and complete a polygraph examination post-offer.  Under the ADA, a polygraph test is not a medical examination.[5]  However, a polygraph test may include disability-related questions that can only be asked post-offer.  If an employer is able to demonstrate that it cannot reasonably administer a polygraph exam that contains some questions that are disability-related and some that are not in the pre-offer stage, the ADA permits the employer to require the exam after the applicant has received a conditional offer.[6]  Whether it is unreasonable to conduct a polygraph test in the pre-offer stage may depend on several factors, including cost.  For example, if there is a large applicant pool, it may be too costly to conduct a polygraph exam with non-medical questions pre-offer and then administer the exam a second time with the disability-related inquiries during the post-offer stage.

Arguably, the drug test and polygraph exam scenarios described above, in which non-medical exams may occur post-offer, are similar to CMCC's procedures described in your letter.  Similar to the drug and polygraph tests that occur post-offer with a series of disability-related questions, CMCC requires applicants to complete an agility test post-offer with disability-related questions.  Like drug testing, which may require an employer to make disability-related inquiries that are closely related to the non-medical test in order to avoid an inaccurate interpretation of the test results, the disability-related questions and agility test here are also closely linked.  Specifically, an applicant's ability to complete the agility test is conditioned upon the responses provided to the disability-related questions in order to ensure safe performance of the test.  Although non-medical tests generally have to be performed pre-offer, it could be argued that the agility test here must be completed post-offer if that is the only stage during which the employer may ask disability-related questions necessary to ensure the safety of the applicant.

Moreover, the use of disability-related questions with an agility test during the post-offer stage under certain circumstances does not appear to frustrate the intent of the ADA or the rationale for the pre-offer and post-offer scheme.  The pre-offer and post-offer scheme enables an applicant who does not receive a final job offer to know that medical, rather than non-medical, information motivated the employer's decision.  Similarly, here, whether it's an answer to a disability-related question or a failed agility test, an applicant who is not hired will know what motivated the employer's withdrawal of the conditional offer.

Option for Medical Certification or Waiver

We note that the Commission has approved the use of a limited medical certification from a doctor to confirm an applicant's ability to complete an agility or physical fitness test at the pre-offer stage.  In order to ensure compliance with the ADA, CMCC may also elect to eliminate the seven disability-related questions and, instead, require applicants to provide a limited medical certification.  The certification should only indicate whether an applicant is able to safely perform the agility test.  It should not include any medical information about conditions that do not affect the applicant's abilities to perform the test. CMCC may provide a description of the agility test and require the applicant to obtain a medical certification from a physician.

Additionally, employers are permitted to ask applicants to sign a waiver releasing the employer from liability for injuries incurred during an agility test resulting from any physical or mental disorders.  CMCC may choose to require applicants to sign a liability waiver. 

(3) Follow-up Examinations

After an employer has obtained basic medical information from an applicant who has received a conditional job offer, the ADA permits the employer to ask individuals for additional medical information.  However, the follow-up examinations or questions must be medically related to the previously obtained medical information, and the procedures used must be the same for all individuals in a particular job category.  Here, CMCC's procedure requiring some applicants to stop the JPA or agility test in order to obtain a medical clearance to ensure that the applicant is fit to continue, is permissible so long as the procedures requiring this follow-up information are the same for all applicants.

(4) Return to Work Disability-Related Inquiries and Medical Examinations

An employer may require an employee who is returning to work after a period of medical leave to complete an agility test.  However, if the test is a medical exam or includes disability-related inquiries, the employer must demonstrate that it has a reasonable belief that the employee's present ability to perform essential job functions will be impaired by a medical condition or that the employee poses a direct threat due to a medical condition. [7]  Moreover, the medical exam or disability-related inquiries should be related to the medical condition for which the employee took leave and must be limited in scope to obtain only information necessary to assess the employee's ability to work. 

Here, the test or PDA used by CMCC appears to be an agility test that measures only the employee's ability to perform job-related tasks.  If that is the case, it it may be administered upon return to work following a "leave of absence caused by a disability."  If, however, the test measures an employee's physiological responses to the job tasks, it would amount to a medical exam that is subject to the conditions described above. 

We hope that this information is helpful.  This letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC.  If you have further questions, please contact me at (202) 663-4665, or Attorney Advisor Ashley Martin, at (202) 663-4695.

Sincerely,

Christopher J. Kuczynski

Acting Associate Legal Counsel

[1] This letter responds to inquiries made concerning CMCC's programs and procedures used during the post-conditional offer of employment stage and return to work following work-related or non work-related disability leave of absence.  The Commission has not been asked to respond to any questions concerning CMCC's accommodation in the workplace programs.

[2] See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 26, 2000), available at http://www.eeoc.gov/policy/docs/qanda-inquiries.html.

[3] See 42 U.S.C. §12112(d); 29 CFR §1630.13.  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.

[4] See EEOC: A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, Section 8.9, Drug Testing (1992).

[5] A polygraph exam purportedly measures whether an individual believes he or she is telling the truth in response to a particular inquiry.  The exam does not measure health or impairments.

[6] See EEOC Informal Discussion Letter, ADA Disability-Related Inquiries and Medical Examinations (Feb. 14, 2001), available at http://www.eeoc.gov/eeoc/foia/letters/2001/ada_inquiries_examinations.html.  While the Office of Legal Counsel has previously addressed this issue in an Informal Discussion Letter, we note that this is not an official position of the Commission.

[7] See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (July 26, 2000).

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