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

December 15, 2002

Dear

This is in response to your recent letter asking the Equal Employment Opportunity Commission (EEOC) for an interpretation of regulations under Title I of the Americans with Disabilities Act (ADA) on behalf of your client, which conducts "physical capability employment screening." Specifically, you ask two questions: (1) Whether an employer, which has multiple facilities, may conduct post-offer strength and agility testing at only those selected facilities having experienced musculoskeletal disorders (MSDs) far and above similar locations; and, (2) Whether an employer may subject current employees in the same job classification to the same strength and agility test to determine their fitness for duty.

As you know, Title I of the ADA limits an employer's ability to make disability-related inquiries and require medical examinations at three stages: pre-offer, post-offer, and during employment. Prior to an offer of employment, the ADA prohibits all disability-related inquiries and medical examinations even if they are related to a job. After an employer extends a conditional job offer, but before an individual begins work, an employer may ask disability-related questions or require medical examinations as long as it does so for all entering employees in the same job category. After employment begins, an employer may make disability-related inquiries and require medical examinations if they are job-related and consistent with business necessity. Only disability-related inquiries and medical examinations, however, are subject to these restrictions.

In its Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (October 10, 1995), the Commission defines the term "disability-related inquiry" as a question that is likely to elicit information about a disability. Enforcement Guidance at 4. In the same guidance, the Commission defines a "medical examination" as a procedure or test that seeks information about an individual's physical or mental impairments or health and lists several factors that should be considered to determine whether a test or procedure is a medical examination. Id. at 14. The guidance also gives examples of procedures and tests that generally are and are not considered medical examinations. Id. at 15-17. Medical examinations are permissible after an employer has extended a real job offer (i.e,, after it has evaluated all relevant nonmedical information it reasonably could have obtained and analyzed prior to giving the offer). Id. at 18.

You first ask whether an employer may conduct post-offer strength and agility testing only at selected facilities. Physical agility tests, which measure an individual's ability to perform actual or simulated job tasks, and physical fitness tests, which measure an individual's performance of physical tasks, are not considered medical examinations as long as they do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure). An employer, therefore, could choose only to conduct such tests at selected facilities. However, because physical agility and physical fitness tests are not medical, they must be conducted at the pre-offer stage.

You also ask whether an employer may subject all current employees in the same job category to the same strength and agility test. Again, because strength and agility tests, as defined above, are not considered medical examinations, an employer does not have to show that requiring employees to submit to these tests is job-related and consistent with business necessity. An employer, therefore, may subject current employees in the same job category to the same strength and agility test to determine their fitness for duty.

Finally, although physical agility tests generally are not considered "medical" examinations, an employer who uses such tests to screen out an individual on the basis of disability must be able to show that its reason for doing so is job-related and consistent with business necessity. Id. at 15, n. 17. This means that an employer would need to demonstrate that the applicant or employee cannot perform the essential functions of the position in question or that he would pose a direct threat to himself or others that cannot be reduced or eliminated through reasonable accommodation.

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

Sincerely,

Joyce Walker-Jones
Senior Attorney Advisor

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