EEOC Informal Discussion Letter

This document was rescinded in December 2019 as part of EEOC's effort to provide guidance and information that is current, accurate, and clear.

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

May 21, 2002

Dear :

In a letter dated January 15, 2002, which we received on February 22, you asked for guidance concerning use of forms seeking medical information from applicants and current employees. You noted that the Marion County Health Department (Marion County) recently adopted the Food and Drug Administration's (FDA) Food Code and sought compliance with rules applicable to prospective and current food handlers. Of particular concern is Marion County's request that your company use FDA forms that request specific medical information. In your letter, you express concern that use of the FDA forms would cause to violate the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA). You also provided us with a copy of a form that you have prepared to replace the FDA form and that you intend to use for both applicants and employees. You ask whether this revised form comports with ADA requirements. ⁽¹⁾

BACKGROUND

The FDA Food Code is intended "to safeguard public health and provide to consumers food that is safe, unadulterated, and honestly presented." Food Code 2001 § 1-102.10 at 1. It is, however, neither federal law nor regulation; rather, it "represents FDA's best advice for a uniform system of regulation to ensure that food at retail is safe and properly protected and presented." Id. at Preface iii. A provider of food to consumers must comply with the Food Code only if it operates in a jurisdiction that has adopted the Code. Moreover, a jurisdiction need not adopt the entire Code or make it applicable to all providers of food. Your letter indicates that Marion County has adopted the Food Code and has made it applicable to restaurants, including .

The FDA has developed several forms for use by applicants and employees seeking medical information. Of concern to is Form 1, entitled "Applicant and Food Employee Interview." Form 1 identifies as its purpose "to ensure that Applicants to whom a conditional offer of employment has been made and Food Employees advise the Person in Charge of past and current conditions described so that the Person in Charge can take appropriate steps to preclude the transmission of food borne illness." ⁽²⁾ The form is intended to prevent the transmission of diseases through food, with an emphasis on illness caused by Salmonella Typha, Shigella spp., Escherichia coli O 157:H7, and Hepatitis A Virus. Form 1 asks applicants and employees whether they:

• currently are suffering from various symptoms (diarrhea, fever, vomiting, jaundice, and sore throat with fever); or have pustular lesions;
• have been diagnosed in the past with typhoid fever, shigellosis, E.coli infection, or hepatitis A;
• have ever been exposed to or suspected of causing a confirmed outbreak of typhoid fever, shigellosis, E.coli infection, or hepatitis A;
• live in the same household as someone diagnosed with typhoid fever, shigellosis, E.coli infection, or hepatitis A; or
• live in the same household as someone who works in or attends a setting where there has been a confirmed outbreak of typhoid fever, shigellosis, E.coli infection, or hepatitis A.

has revised Form 1 because of a concern that the questions asked violate the ADA. In its revised Form 1, asks only whether applicants and current employees now have the five symptoms or pustular lesions. has eliminated questions relating to past incidents of disease (typhoid fever, shigellosis, E.coli infection, and hepatitis A) and to current or past exposure to these diseases.

ADA PRINCIPLES

As you know, the ADA limits employer access to applicant and employee medical information. ADA section 102(d)(2)(A) permits an employer to require a medical examination or make disability-related inquiries of an applicant only after it has extended a job offer to the applicant. The section further states that the job offer may be conditioned on completion of the medical examination or inquiry. Nothing in this section limits the scope of the examination or inquiry once an employer extends a conditional offer of employment. An employer may only make disability-related inquiries or require medical examinations of current employees where they are job-related and consistent with business necessity Moreover, the exam or inquiry must be narrowly tailored to fit the reason for the request. A disability-related inquiry or medical examination generally may be job-related and consistent with business necessity where an employer has a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential functions or will pose a direct threat due to a medical condition. See "Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act," question 5 at 15, 8 Fair Empl. Prac. Manual (BNA) 405:7701, 7708 (2000).

The ADA also includes a provision specifically intended to safeguard the nation's food supply. ADA section 103(d)(1), codified at 42 U.S.C. § 12113(d)(1), charges the Secretary of Health and Human Services with the responsibility of preparing annually a list of infectious and communicable diseases that could be transmitted through food handling. Section 103(d)(2) provides that an employer may reassign or refuse to assign an individual with one of the listed diseases to a food handling position if the risk of disease transmission cannot be eliminated through a reasonable accommodation. Finally, and significantly, section 103(d)(3) provides as follows:

Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the Secretary of Health and Human Services.

42 U.S.C. § 12113(d)(3). On September 10, 2001, the Secretary, through the Centers for Disease Control and Prevention (CDC), issued the most recent list of infectious and communicable diseases transmissible through the food supply. The list includes the diseases listed on Form 1. See 66 Fed. Reg. 47,030-31 (Sept. 10, 2001).

APPLICATION OF ADA PRINCIPLES

use of Form 1 for applicants who have received a conditional offer of employment would be consistent with the ADA. As noted above, once an employer has extended a bona fide conditional offer of employment, it may require that the post-offer applicant undergo a medical examination and answer questions without any limit whatsoever; "[m]edical examinations conducted in accordance with this section do not have to be job-related and consistent with business necessity." 29 C.F.R. § 1630.14(b)(3). The only limitations on employers involve use of the information and confidentiality: Specifically, where an employer uses information learned as the result of a post-offer disability-related inquiry or medical examination to withdraw an offer from an individual with a disability, the employer must demonstrate that its decision was job-related and consistent with business necessity. All medical information collected must be treated as a confidential medical record.

Moreover, compliance with the requirements of the Food Code as adopted by Marion County, specifically the use of Form 1, will not cause the company to violate the ADA's limitations on employer access to employee medical information. Use of the form would constitute compliance with a "local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others . . . ." 42 U.S.C. § 12113(d)(3). The most current scientific information available appears to substantiate this conclusion. An official from the CDC advised this Office that an individual may have one of the diseases identified in the list of "Diseases Transmitted Through the Food Supply" and be both unaware that he or she carries the disease and unaffected by the presence of the virus. That is, an employee could be quite contagious, though the employee and the employer are unaware of it. ⁽³⁾ For this reason, a restaurant that asks its employees the questions listed in Form 1 could assert the defense in section 103(d)(3) of the ADA. However, any follow-up inquiries or medical examinations based on responses to the questions on Form 1 must be limited to determining whether an employee has one of the identified conditions, and if so, whether the condition could be transmitted through food handling.

We hope this information is helpful to you. Please note that this is not an official opinion of the Equal Employment Opportunity Commission. If you have any questions or would like to discuss this or any related matter in more detail, you may reach me at 202-663-4603, or Peter S. Gray, Senior Attorney Advisor, at 202-663-4604.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel

1. Your letter included three FDA forms and two revised forms. A review of the forms indicates that you have made substantive changes only to FDA Form 1. None of the company's few changes to Form 2 were substantive; they included changing "Food Employees" to "Restaurant Employees"' adding the word "Management" and putting "Person in Charge" in parenthesis; and eliminating the word "applicant" from the signature line at the bottom of the form. (Inasmuch as the form has been designed for employee use only, this latter change does not affect which individuals subject to the agreement.)

2. The "Person in Charge" is defined in the Food Code to mean "the individual present at a food establishment who is responsible for the operation at the time of inspection." Food Code 2001 § 1-201.10(B)(58) at 11.

3. Though the name Mary Mallon may be unfamiliar, her nickname,"Typhoid Mary," is quite well known. Ms. Mallon worked as a cook, spread typhoid fever, but apparently was not ill with the disease herself. She is believed to have infected over 50 persons (resulting in at least three deaths) before she was hospitalized and kept away from the kitchen. Encyclopedia Americana, International Edition, s.v. "Typhoid Mary."

This page was last modified on December 18, 2019.