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; State Laws

July 13, 2018

Dear_____:

This is in response to your recent email to the Boston Area Office of the Equal Employment Opportunity Commission (EEOC or Commission) asking for an opinion on proposed Massachusetts state legislation, S. 2509, that seeks to protect veterans' military medical and service records.  This is an informal discussion of the issues you have raised and is not an official opinion of the Commission.

The relevant provision, Section 3, of the bill states:

Notwithstanding the administrator's right to require a physician's certificate in the case of a disabled veteran, an appointing authority shall not require, request or accept an individual's military medical record or military personnel service record for the purpose of employment; however, that appointing authority may require, request or accept the individual's DD-214 form. An appointing authority shall not impose a term or condition on an individual as a condition of obtaining or retaining employment if compliance with the term or condition would require the individual to present the individual's military medical record or military personnel service record . . . ⁽¹⁾

For the reasons discussed below, we believe this proposed legislation is consistent with provisions of Title I of the Americans with Disabilities Act (ADA) that limit the circumstances under which employers may obtain medical information about applicants and employees and, in fact, provides greater protection than the ADA by prohibiting employers from obtaining the service-related medical records of veterans in all circumstances.  Because the ADA allows state and local governments to enact and enforce laws that provide equal or greater protections for individuals with disabilities, these additional protections are permissible.

ADA Principles Relative to Obtaining and Using Medical Information

The ADA strictly limits when employers may obtain medical information, how the information can be used, and who can have access to it. These restrictions reflect Congress's intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to hire and retain individuals who can effectively and safely perform their jobs.

The ADA divides the employment relationship into three distinct stages: pre-offer, post-offer, and employment and sets forth what an employer can do at each of these stages.  With limited exceptions, the ADA requires employers to treat any information obtained regarding the medical condition or history of an applicant or employee, including information voluntarily disclosed, as confidential and prohibits including medical information in an individual's personnel file.  See 42 U.S.C. § 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14(b)(1), (c)(1); EEOC Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations Under the ADA, 10/10/95), http://www.eeoc.gov/policy/docs/preemp.html (Preemployment Guidance); EEOC Enforcement Guidance:  Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (7/27/2000), http://www.eeoc.gov/policy/docs/guidance-inquiries.html  (Employee Guidance).

Pre-Offer

Prior to extending an offer of employment, the ADA prohibits employers from asking questions that are likely to elicit information about a disability or conducting medical examinations.  See 42 U.S.C. § 12112(d)(2); 29 C.F.R. § 1630.13(a); Preemployment Guidance.  Additionally, employers may not obtain through third parties what they may not ask for directly. See Employee Guidance at n. 20.  Thus, the ADA prohibits employers from requesting an applicant's medical record before an offer of employment, or any other record that may contain medical information, including medical records related to military service.

Although employers may not obtain medical information before making a job offer, they may ask questions and obtain documentation to evaluate whether an applicant is qualified for the job, including:

• Stating the physical requirements of a job and asking if an applicant can satisfy these requirements;
• Asking an applicant about, and requesting appropriate documentation of, non-medical qualifications and skills, such as education, work history, and required certifications and licenses;
• Requesting the names and numbers of references who can vouch for the applicant's character or work or military experience;
• Asking an applicant to describe or demonstrate how he or she would perform job tasks.

An employer also may ask an applicant who has a known disability that the employer reasonably believes may affect the applicant's ability to do the essential functions of the job whether he will need an accommodation to do the job and, if so, what type.  See Preemployment Guidance.  All other questions about the nature and extent of the disability are prohibited.

Post Offer

The ADA allows an employer to determine whether an applicant to whom it has made an offer of employment has a medical condition that may prevent performance of a job or pose a direct threat in the workplace.  Thus, once a conditional job offer is made (which occurs after the employer has obtained and evaluated all reasonably available non-medical information), the employer may ask disability-related questions (including requesting medical history and records) and/or require medical examinations as long as it does so for all entering employees in the same job category.  See 42 U.S.C. § 12112(d)(3)(A); 29 C.F.R. § 1630.14) (b); Preemployment Guidance.  For example, if an employer has extended a conditional offer of employment to several candidates to be police officers, it may ask all candidates (not just those who previously served in the military) to submit their medical records or undergo a medical examination. 

An employer that wants to withdraw an offer based on medical information it obtains during the post-offer stage must demonstrate either that the applicant cannot perform the essential functions of the job or, where the employer's concern is about the ability of the applicant to perform the job safely, that the individual poses a direct threat.  See Preemployment Guidance.  A direct threat is a significant risk of substantial harm to the individual with a disability or others that cannot be reduced or eliminated by reasonable accommodation.  See 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r).

During Employment

Once someone is working, actual performance generally is the best measure of ability to do the job. The ADA, however, recognizes that a need may arise to question whether an employee can continue to perform the essential functions of a job or may pose a direct threat because of a medical condition. Thus, it allows an employer to ask disability-related questions (or obtain medical history and records) and require medical examinations of employees when doing so is job-related and consistent with business necessity.  See 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); Employee Guidance at Q&A 5.

Generally, a disability-related inquiry or a request for a medical examination of an employee will be job-related and consistent with business necessity where an employer has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition, or the employee will pose a direct threat due to a medical condition.  Most of the time, this standard will be met when an employer knows about an employee's medical condition, has observed performance problems, and reasonably can attribute the problems to a medical condition.  Employee Guidance at Q&A 5.  The standard is not met simply because an employer knows that the employee served in the military and may have a service-connected physical or mental disability.  Although an employer may obtain medical documentation when it reasonably believes that an employee's ability to perform essential functions will be impaired by a medical condition or that the employee will pose a direct threat due to a medical condition, an employer is entitled only to the information necessary to make such a determination.  This means that, in most situations, an employer cannot request an employee's complete medical records because they are likely to contain information unrelated to whether the employee can work safely.  Employee Guidance at Q&A 13.

The ADA also permits an employer to obtain medical information from an employee who requests a reasonable accommodation and whose disability or need for accommodation is not obvious.  Again, an employer cannot ask for an employee's complete medical records because they are likely to contain information unrelated to the disability at issue and need for accommodation.  See Revised EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA (as revised 10/1702), http://eeoc.gov/policy/docs/accommodation.html, at Q&A 6-8; Employee Guidance at Q&A 10.

Application of ADA Principles to the Proposed Legislation

The proposed legislation is consistent with the ADA in that it prohibits an employer from requiring, requesting, or accepting an individual's military medical record at the pre-offer stage.  It is more restrictive than the ADA at the post-offer and employment stages, however, as it prohibits an employer from obtaining access to military medical records even in situations where the ADA would allow access..  Because Congress did not intend to invalidate any state laws that provide greater protection to individuals with disabilities, see 42 U.S.C. § 12201(b); 29 C.F.R. § 1630.1(c)(2), the proposed legislation can impose stricter limitations on an employer's access to an applicant's or employee's medical information than the ADA.

Finally, the proposed legislation is consistent with the ADA in that it does not appear to prohibit employers from asking disability-related questions or requiring medical examinations post-offer or during employment under circumstances where the ADA would allow an employer to do so, as long as they do not require or request military medical records.  Thus, when an employer has concerns about whether a person who has received a conditional job offer or about whether a current employee can perform the essential functions of a job or may pose a direct threat because of a medical condition, it may still obtain the medical information it needs to make a determination.  For example, an employer may ask an applicant for medical information from his or her personal physician or require the applicant to take a medical examination after making an offer of employment if it requires all entering employees in the same job category to do so.  An employer also may ask employees who are veterans to submit appropriate medical documentation or take a medical examination, consistent with the ADA, if the employee requests a reasonable accommodation and the disability or need for accommodation is not obvious, where the request for medical information or for a medical examination is job-related and consistent with business necessity, or for any other reason permitted by the ADA.  The only information that the proposed legislation says an employer may not ask for is the employee's military medical record.

We hope this information is helpful.  As noted above, this is an informal discussion of the issues you have raised and is not an official opinion of the Commission.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA/GINA Policy Division

FOOTNOTES:

1 See S. 2509, Commonwealth of Massachusetts Senate bill relative to veterans' benefits, rights, appreciation, validation and enforcement.

This page was last modified on August 7, 2018.