Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

EEOC NOTICE 
Number 915.002 
Date 10/10/95



1.  SUBJECT:  Enforcement Guidance: Preemployment Disability-
    Related Questions and Medical Examinations.

2.  PURPOSE: This document provides the EEOC's position under the 
    Americans with Disabilities Act of 1990, on preemployment 
    disability-related questions and medical examinations.

3.  EFFECTIVE DATE: Upon receipt.

4.  EXPIRATION DATE: As an exception to EEOC Order 205.001, 
    Appendix B, Attachment 4, § a(5), this Notice will remain in 
    effect until rescinded or superseded.

5.  ORIGINATOR: ADA Division, Office of Legal Counsel.

6.  INSTRUCTIONS: File after Section 902 of Volume II of the 
    Compliance Manual.




_______________________            ___________________________
Date                               Gilbert F. Casellas
                                   Chairman




ADA Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations

        Introduction

Under the Americans with Disabilities Act of 1990 (the "ADA"),1 an 
employer may ask disability-related questions and require medical 
examinations of an applicant only after the applicant has been 
given a conditional job offer.  This Enforcement Guidance explains 
these ADA provisions.2

        Background

In the past, some employment applications and interviews requested 
information about an applicant's physical and/or mental condition.  
This information was often used to exclude applicants with 
disabilities before their ability to perform the job was even 
evaluated.

For example, applicants may have been asked about their medical 
conditions at the same time that they were engaging in other parts 
of the application process, such as completing a written job 
application or having references checked.  If an applicant was 
then rejected, s/he did not necessarily know whether s/he was 
rejected because of disability, or because of insufficient skills 
or experience or a bad report from a reference.

As a result, Congress established a process within the ADA to 
isolate an employer's consideration of an applicant's non-medical 
qualifications from any consideration of the applicant's medical 
condition.

        The Statutory and Regulatory Framework

Under the law, an employer may not ask disability-related 
questions and may not conduct medical examinations until after it 
makes a conditional job offer to the applicant.3  This helps 
ensure that an applicant's possible hidden disability (including a 
prior history of a disability) is not considered before the 
employer evaluates an applicant's non-medical qualifications.  An 
employer may not ask disability-related questions or require a 
medical examination pre-offer even if it intends to look at the 
answers or results only at the post-offer stage.

Although employers may not ask disability-related questions or 
require medical examinations at the pre-offer stage, they may do a 
wide variety of things to evaluate whether an applicant is 
qualified for the job, including the following:

 * Employers may ask about an applicant's ability to perform 
   specific job functions.  For example, an employer may state the 
   physical requirements of a job (such as the ability to lift a 
   certain amount of weight, or the ability to climb ladders), and 
   ask if an applicant can satisfy these requirements.

 * Employers may ask about an applicant's non-medical 
   qualifications and skills, such as the applicant's education, work 
   history, and required certifications and licenses. 

 * Employers may ask applicants to describe or demonstrate how they 
   would perform job tasks.

Once a conditional job offer is made, the employer may ask 
disability-related questions and require medical examinations as 
long as this is done for all entering employees in that job 
category.  If the employer rejects the applicant after a 
disability-related question or medical examination, investigators 
will closely scrutinize whether the rejection was based on the 
results of that question or examination.

If the question or examination screens out an individual because 
of a disability, the employer must demonstrate that the reason for 
the rejection is "job-related and consistent with business 
necessity."4



In addition, if the individual is screened out for safety reasons, 
the employer must demonstrate that the individual poses a "direct 
threat."  This means that the individual poses a significant risk 
of substantial harm to him/herself or others, and that the risk 
cannot be reduced below the direct threat level through reasonable 
accommodation.5 

Medical information must be kept confidential.6  The ADA contains 
narrow exceptions for disclosing specific, limited information to 
supervisors and managers, first aid and safety personnel, and 
government officials investigating compliance with the ADA.  
Employers may also disclose medical information to state workers' 
compensation offices, state second injury funds, or workers' 
compensation insurance carriers in accordance with state workers' 
compensation laws7 and may use the medical information for 
insurance purposes.8

        The Pre-Offer Stage

        What is a Disability-Related Question?

Definition: "Disability-Related Question" means a question that is 
likely to elicit information about a disability.

At the pre-offer stage, an employer cannot ask questions that are 
likely to elicit information about a disability.  This includes 
directly asking whether an applicant has a particular disability.  
It also means that an employer cannot ask questions that are 
closely related to disability.9

On the other hand, if there are many possible answers to a 
question and only some of those answers would contain disability-
related information, that question is not "disability-related."10

Below are some commonly asked questions about this area of the 
law.

* May an employer ask whether an applicant can perform the job?

   Yes.  An employer may ask whether applicants can perform any or 
   all job functions, including whether applicants can perform job 
   functions "with or without reasonable accommodation."11


* May an employer ask applicants to describe or demonstrate how 
they would perform the job (including any needed reasonable 
accommodations)?

   Yes. An employer may ask applicants to describe how they would 
   perform any or all job functions, as long as all applicants in the 
   job category are asked to do this.

   Employers should remember that, if an applicant says that s/he 
   will need a reasonable accommodation to do a job demonstration, 
   the employer must either:

   * provide a reasonable accommodation that does not create an undue 
   hardship; or

   * allow the applicant to simply describe how s/he would perform 
   the job function.  


* May an employer ask a particular applicant to describe or 
demonstrate how s/he would perform the job, if other applicants 
aren't asked to do this?

   When an employer could reasonably believe that an applicant will 
   not be able to perform a job function because of a known 
   disability, the employer may ask that particular applicant to 
   describe or demonstrate how s/he would perform the function.  An 
   applicant's disability would be a "known disability" either 
   because it is obvious (for example, the applicant uses a 
   wheelchair), or because the applicant has voluntarily disclosed 
   that s/he has a hidden disability. 


* May an employer ask applicants whether they will need reasonable 
accommodation for the hiring process?

   Yes.  An employer may tell applicants what the hiring process 
   involves (for example, an interview, timed written test, or job 
   demonstration), and may ask applicants whether they will need a 
   reasonable accommodation for this process.


* May an employer ask an applicant for documentation of his/her 
disability when the applicant requests reasonable accommodation 
for the hiring process?

   Yes.  If the need for accommodation is not obvious, an employer 
   may ask an applicant for reasonable documentation about his/her 
   disability if the applicant requests reasonable accommodation for 
   the hiring process (such as a request for the employer to reformat 
   an examination, or a request for an accommodation in connection 
   with a job demonstration).  The employer is entitled to know that 
   the applicant has a covered disability and that s/he needs an 
   accommodation.

   So, the applicant may be required to provide documentation from an 
   appropriate professional, such as a doctor or a rehabilitation 
   counselor, concerning the applicant's disability and functional 
   limitations.


* May an employer ask applicants whether they will need reasonable 
accommodation to perform the functions of the job?


   In general, an employer may not ask questions on an application or 
   in an interview about whether an applicant will need reasonable 
   accommodation for a job.  This is because these questions are 
   likely to elicit whether the applicant has a disability 
   (generally, only people who have disabilities will need reasonable 
   accommodations).

   Example:  An employment application may not ask, "Do you need 
   reasonable accommodation to perform this job?"

   Example:  An employment application may not ask, "Can you do these 
   functions with ___ without ___ reasonable accommodation? (Check 
   One)"

   Example:  An applicant with no known disability is being 
   interviewed for a job.  He has not asked for any reasonable 
   accommodation, either for the application process or for the job.  
   The employer may not ask him, "Will you need reasonable 
   accommodation to perform this job?"

   However, when an employer could reasonably believe that an 
   applicant will need reasonable accommodation to perform the 
   functions of the job, the employer may ask that applicant certain 
   limited questions.  Specifically, the employer may ask whether 
   s/he needs reasonable accommodation and what type of reasonable 
   accommodation would be needed to perform the functions of the 
   job.12  The employer could ask these questions if:

   * the employer reasonably believes the applicant will need 
   reasonable accommodation because of an obvious disability;

   * the employer reasonably believes the applicant will need 
   reasonable accommodation because of a hidden disability that the 
   applicant has voluntarily disclosed to the employer; or

   * an applicant has voluntarily disclosed to the employer that s/he 
   needs reasonable accommodation to perform the job.

   Example:  An individual with diabetes applying for a receptionist 
   position voluntarily discloses that she will need periodic breaks 
   to take medication.  The employer may ask the applicant questions 
   about the reasonable accommodation such as how often she will need 
   breaks, and how long the breaks must be.  Of course, the employer 
   may not ask any questions about the underlying physical condition.


   Example: An applicant with a severe visual impairment applies for 
   a job involving computer work.  The employer may ask whether he 
   will need reasonable accommodation to perform the functions of the 
   job.  If the applicant answers "no," the employer may not ask 
   additional questions about reasonable accommodation (although, of 
   course, the employer could ask the applicant to describe or 
   demonstrate performance).  If the applicant says that he will need 
   accommodation, the employer may ask questions about the type of 
   required accommodation such as, "What will you need?"  If the 
   applicant says he needs software that increases the size of text 
   on the computer screen, the employer may ask questions such as, 
   "Who makes that software?" "Do you need a particular brand?" or 
   "Is that software compatible with our computers?"  However, the 
   employer may not ask questions about the applicant's underlying 
   condition.  In addition, the employer may not ask reasonable 
   accommodation questions that are unrelated to job functions such 
   as, "Will you need reasonable accommodation to get to the 
   cafeteria?"

   An employer may only ask about reasonable accommodation that is 
   needed now or in the near future.  An applicant is not required to 
   disclose reasonable accommodations that may be needed in the more 
   distant future.


* May an employer ask whether an applicant can meet the employer's 
attendance requirements?

   Yes.  An employer may state its attendance requirements and ask 
   whether an applicant can meet them.  An employer also may ask 
   about an applicant's prior attendance record (for example, how 
   many days the applicant was absent from his/her last job).  These 
   questions are not likely to elicit information about a disability 
   because there may be many reasons unrelated to disability why 
   someone cannot meet attendance requirements or was frequently 
   absent from a previous job (for example, an applicant may have had 
   day-care problems).

   An employer also may ask questions designed to detect whether an 
   applicant abused his/her leave because these questions are not 
   likely to elicit information about a disability.

   Example:  An employer may ask an applicant, "How many Mondays or 
   Fridays were you absent last year on leave other than approved 
   vacation leave?"

   However, at the pre-offer stage, an employer may not ask how many 
   days an applicant was sick, because these questions relate 
   directly to the severity of an individual's impairments.  
   Therefore, these questions are likely to elicit information about 
   a disability.


* May an employer ask applicants about their certifications and 
licenses?

   Yes.  An employer may ask an applicant at the pre-offer stage 
   whether s/he has certifications or licenses required for any job 
   duties.  An employer also may ask an applicant whether s/he 
   intends to get a particular job-related certification or license, 
   or why s/he does not have the certification or license.  These 
   questions are not likely to elicit information about an 
   applicant's disability because there may be a number of reasons 
   unrelated to disability why someone does not have -- or does not 
   intend to get -- a certification/license.


* May an employer ask applicants about their arrest or conviction 
records?

   Yes.  Questions about an applicant's arrest or conviction records 
   are not likely to elicit information about disability because 
   there are many reasons unrelated to disability why someone may 
   have an arrest/conviction record.13


* May an employer ask questions about an applicant's impairments?

   Yes, if the particular question is not likely to elicit 
   information about whether the applicant has a disability.  It is 
   important to remember that not all impairments will be 
   disabilities; an impairment is a disability only if it 
   substantially limits a major life activity.  So, an employer may 
   ask an applicant with a broken leg how she broke her leg.  Since a 
   broken leg normally is a temporary condition which does not rise 
   to the level of a disability, this question is not likely to 
   disclose whether the applicant has a disability.  But, such 
   questions as "Do you expect the leg to heal normally?" or "Do you 
   break bones easily?" would be disability-related.  Certainly, an 
   employer may not ask a broad question about impairments that is 
   likely to elicit information about disability, such as, "What 
   impairments do you have?"


* May an employer ask whether applicants can perform major life 
activities, such as standing, lifting, walking, etc.?

   Questions about whether an applicant can perform major life 
   activities are almost always disability-related because they are 
   likely to elicit information about a disability.  For example, if 
   an applicant cannot stand or walk, it is likely to be a result of 
   a disability.  So, these questions are prohibited at the pre-offer 
   stage unless they are specifically about the ability to perform 
   job functions.


* May an employer ask applicants about their workers' compensation 
history?

   No.  An employer may not ask applicants about job-related injuries 
   or workers' compensation history.  These questions relate directly 
   to the severity of an applicant's impairments.  Therefore, these 
   questions are likely to elicit information about disability.


* May an employer ask applicants about their current illegal use 
of drugs?

   Yes.  An employer may ask applicants about current illegal use of 
   drugs14 because an individual who currently illegally uses drugs 
   is not protected under the ADA (when the employer acts on the 
   basis of the drug use).15


* May an employer ask applicants about their lawful drug use?

   No, if the question is likely to elicit information about 
   disability.  Employers should know that many questions about 
   current or prior lawful drug use are likely to elicit information 
   about a disability, and are therefore impermissible at the pre-
   offer stage.  For example, questions like, "What medications are 
   you currently taking?" or "Have you ever taken AZT?" certainly 
   elicit information about whether an applicant has a disability.

   However, some innocuous questions about lawful drug use are not 
   likely to elicit information about disability.

   Example:  During her interview, an applicant volunteers to the 
   interviewer that she is coughing and wheezing because her 
   allergies are acting up as a result of pollen in the air.  The 
   interviewer, who also has allergies, tells the applicant that he 
   finds "Lemebreathe" (an over-the-counter antihistamine) to be 
   effective, and asks the applicant if she has tried it.  There are 
   many reasons why someone might have tried "Lemebreathe" which have 
   nothing to do with disability.  Therefore, this question is not 
   likely to elicit information about a disability.


* May an employer ask applicants about their lawful drug use if 
the employer is administering a test for illegal use of drugs?

   Yes, if an applicant tests positive for illegal drug use.  In that 
   case, the employer may validate the test results by asking about 
   lawful drug use or possible explanations for the positive result 
   other than the illegal use of drugs.

   Example:  If an applicant tests positive for use of a controlled 
   substance, the employer may lawfully ask questions such as, "What 
   medications have you taken that might have resulted in this 
   positive test result?  Are you taking this medication under a 
   lawful prescription?"


* May an employer ask applicants about their prior illegal drug 
use?

   Yes, provided that the particular question is not likely to elicit 
   information about a disability.  It is important to remember that 
   past addiction to illegal drugs or controlled substances is a 
   covered disability under the ADA (as long as the person is not a 
   current illegal drug user), but past casual use is not a covered 
   disability.  Therefore, the question is fine as long as it does 
   not go to past drug addiction.

   Example:  An employer may ask, "Have you ever used illegal drugs?" 
   "When is the last time you used illegal drugs?" or "Have you used 
   illegal drugs in the last six months?"  These questions are not 
   likely to tell the employer anything about whether the applicant 
   was addicted to drugs.

   However, questions that ask how much the applicant used drugs in 
   the past are likely to elicit information about whether the 
   applicant was a past drug addict.  These questions are therefore 
   impermissible at the pre-offer stage. 

   Example:  At the pre-offer stage, an employer may not ask an
   applicant questions such as, "How often did you use illegal drugs 
   in the past?" "Have you ever been addicted to drugs?" "Have you 
   ever been treated for drug addiction?" or "Have you ever been 
   treated for drug abuse?"


* May an employer ask applicants about their drinking habits?

   Yes, unless the particular question is likely to elicit 
   information about alcoholism, which is a disability.  An employer 
   may ask an applicant whether s/he drinks alcohol, or whether s/he 
   has been arrested for driving under the influence because these 
   questions do not reveal whether someone has alcoholism.  However, 
   questions asking how much alcohol an applicant drinks or whether 
   s/he has participated in an alcohol rehabilitation program are 
   likely to elicit information about whether the applicant has 
   alcoholism.           


* May an employer ask applicants to "self-identify" as individuals 
with disabilities for purposes of the employer's affirmative 
action program?

   Yes.  An employer may invite applicants to voluntarily self-
   identify for purposes of the employer's affirmative action program 
   if:

   * the employer is undertaking affirmative action because of a 
   federal, state, or local law (including a veterans' preference 
   law) that requires affirmative action for individuals with 
   disabilities (that is, the law requires some action to be taken on 
   behalf of such individuals); or

   * the employer is voluntarily using the information to benefit 
   individuals with disabilities.

   Employers should remember that state or local laws sometimes 
   permit or encourage affirmative action.  In those cases, an 
   employer may invite voluntary self-identification only if the 
   employer uses the information to benefit individuals with 
   disabilities.


* Are there any special steps an employer should take if it asks 
applicants to "self-identify" for purposes of the employer's 
affirmative action program?

   Yes.  If the employer invites applicants to voluntarily self-
   identify in connection with providing affirmative action, the 
   employer must do the following:

   * state clearly on any written questionnaire, or state clearly 
   orally (if no written questionnaire is used), that the information 
   requested is used solely in connection with its affirmative action 
   obligations or efforts; and

   * state clearly that the information is being requested on a 
   voluntary basis, that it will be kept confidential in accordance 
   with the ADA, that refusal to provide it will not subject the 
   applicant to any adverse treatment, and that it will be used only 
   in accordance with the ADA. 

   In order to ensure that the self-identification information is
   kept confidential, the information must be on a form that is kept 
   separate from the application.


* May an employer ask third parties questions it could not ask the 
applicant directly?

   No.  An employer may not ask a third party (such as a service that 
   provides information about workers' compensation claims, a state 
   agency, or an applicant's friends, family, or former employers) 
   any questions that it could not directly ask the applicant.



        What is a Medical Examination?

Definition:  A "Medical Examination" is a procedure or test that 
seeks information about an individual's physical or mental 
impairments or health.

At the pre-offer stage, an employer cannot require examinations 
that seek information about physical or mental impairments or 
health.  It is not always easy to determine whether something is a 
medical examination.  The following factors are helpful in 
determining whether a procedure or test is medical:

*     Is it administered by a health care professional or someone 
trained by a health care professional?

*     Are the results interpreted by a health care professional or 
someone trained by a health care professional?

*     Is it designed to reveal an impairment or physical or mental 
health?

*     Is the employer trying to determine the applicant's physical 
or mental health or impairments?

*     Is it invasive (for example, does it require the drawing of 
blood, urine or breath)?

*     Does it measure an applicant's performance of a task, or does 
it measure the applicant's physiological responses to performing 
the task?

*     Is it normally given in a medical setting (for example, a 
health care professional's office)?

*     Is medical equipment used?

In many cases, a combination of factors will be relevant in 
figuring out whether a procedure or test is a medical examination.  
In some cases, one factor may be enough to determine that a 
procedure or test is medical.

   Example:  An employer requires applicants to lift a thirty pound 
   box and carry it twenty feet.  This is not a medical examination; 
   it is just a test of whether the applicant can perform this task.  
   But, if the employer takes the applicant's blood pressure or heart 
   rate after the lifting and carrying, the test would be a medical 
   examination because it is measuring the applicant's physiological 
   response to lifting and carrying, as opposed to the applicant's 
   ability to lift and carry.

   Example:  A psychological test is designed to reveal mental 
   illness, but a particular employer says it does not give the test 
   to disclose mental illness (for example, the employer says it uses 
   the test to disclose just tastes and habits).  But, the test also 
   is interpreted by a psychologist, and is routinely used in a 
   clinical setting to provide evidence that would lead to a 
   diagnosis of a mental disorder or impairment (for example, whether 
   an applicant has paranoid tendencies, or is depressed).  Under 
   these facts, this test is a medical examination.

Below are some commonly asked questions about the ADA's 
restrictions on pre-offer medical examinations.


* May an employer require applicants to take physical agility 
tests?

   Yes.  A physical agility test, in which an applicant demonstrates 
   the ability to perform actual or simulated job tasks, is not a 
   medical examination under the ADA.16
   
   Example:  A police department tests police officer applicants' 
   ability to run through an obstacle course designed to simulate a 
   suspect chase in an urban setting.  This is not a medical 
   examination.


* May an employer require applicants to take physical fitness 
tests?

   Yes.  A physical fitness test, in which an applicant's performance
   of physical tasks -- such as running or lifting -- is measured, is 
   not a medical examination.17

   However, if an employer measures an applicant's physiological or 
   biological responses to performance, the test would be medical.

   Example:  A messenger service tests applicants' ability to run one 
   mile in 15 minutes.  At the end of the run, the employer takes the 
   applicants' blood pressure and heart rate.  Measuring the 
   applicant's physiological responses makes this a medical 
   examination.


* May an employer ask an applicant to provide medical 
certification that s/he can safely perform a physical agility or 
physical fitness test?

   Yes.  Although an employer cannot ask disability-related 
   questions, it may give the applicant a description of the agility 
   or fitness test and ask the applicant to have a private physician 
   simply state whether s/he can safely perform the test.


* May an employer ask an applicant to assume liability for 
injuries incurred in performing a physical agility or physical 
fitness test?

   Yes.  An employer may ask an applicant to assume responsibility 
   and release the employer of liability for injuries incurred in 
   performing a physical agility or fitness test.


* May an employer give psychological examinations to applicants?

   Yes, unless the particular examination is medical.  This 
   determination would be based on some of the factors listed above, 
   such as the purpose of the test and the intent of the employer in 
   giving the test.  Psychological examinations are medical if they 
   provide evidence that would lead to identifying a mental disorder 
   or impairment (for example, those listed in the American 
   Psychiatric Association's most recent Diagnostic and Statistical 
   Manual of Mental Disorders (DSM)).

   Example:  An employer gives applicants the RUOK Test 
   (hypothetical), an examination which reflects whether applicants 
   have characteristics that lead to identifying whether the 
   individual has excessive anxiety, depression, and certain 
   compulsive disorders (DSM-listed conditions).  This test is 
   medical.

   On the other hand, if a test is designed and used to measure only 
   things such as honesty, tastes, and habits, it is not medical.

   Example:  An employer gives the IFIB Personality Test 
   (hypothetical), an examination designed and used to reflect only 
   whether an applicant is likely to lie.  This test, as used by the 
   employer, is not a medical examination.


* May an employer give polygraph examinations to applicants?

   Although most employers are prohibited by federal and state laws 
   from giving polygraph examinations, some employers are not 
   prohibited from giving these examinations.  Under the ADA, 
   polygraph examinations are not medical examinations.18  Many 
   times, however, polygraph examinations contain disability-related 
   questions, such as questions about what lawful medications the 
   applicant is taking.  Employers cannot ask disability-related 
   questions as part of a pre-offer examination, even if the
   examination is not itself "medical."


* May an employer give vision tests to applicants?

   Yes, unless the particular test is medical.  Evaluating someone's 
   ability to read labels or distinguish objects as part of a 
   demonstration of the person's ability to do the job is not a 
   medical examination.  However, an ophthalmologist's or 
   optometrist's analysis of someone's vision is medical.  Similarly, 
   requiring an individual to read an eye chart would be a medical 
   examination.

 
* May an employer give applicants tests to determine illegal use 
of controlled substances?

   Yes.  The ADA specifically states that, for purposes of the ADA, 
   tests to determine the current illegal use of controlled 
   substances are not considered medical examinations.


* May an employer give alcohol tests to applicants?

   No.  Tests to determine whether and/or how much alcohol an 
   individual has consumed are medical, and there is no statutory 
   exemption.

        The Post-Offer Stage

After giving a job offer to an applicant, an employer may ask 
disability-related questions and perform medical examinations.  
The job offer may be conditioned on the results of post-offer 
disability-related questions or medical examinations.

At the "post-offer" stage, an employer may ask about an 
individual's workers' compensation history, prior sick leave 
usage, illnesses/diseases/impairments, and general physical and 
mental health.  Disability-related questions and medical 
examinations at the post-offer stage do not have to be related to 
the job.19

If an employer asks post-offer disability-related questions, or 
requires post-offer medical examinations, it must make sure that 
it follows certain procedures:

* all entering employees in the same job category must be 
subjected to the examination/inquiry, regardless of disability;20 
and

* medical information obtained must be kept confidential.21

Below are some commonly asked questions about the post-offer 
stage.


* What is considered a real job offer?

   Since an employer can ask disability-related questions and require 
   medical examinations after a job offer, it is important that the 
   job offer be real.  A job offer is real if the employer has 
   evaluated all relevant non-medical information which it reasonably 
   could have obtained and analyzed prior to giving the offer.  Of 
   course, there are times when an employer cannot reasonably obtain 
   and evaluate all non-medical information at the pre-offer stage.  
   If an employer can show that is the case, the offer would still be 
   considered a real offer.

   Example:  It may be too costly for a law enforcement employer 
   wishing to administer a polygraph examination to administer a pre-
   offer examination asking non-disability-related questions, and a 
   post-offer examination asking disability-related questions.  In 
   this case, the employer may be able to demonstrate that it could 
   not reasonably obtain and evaluate the non-medical polygraph 
   information at the pre-offer stage.

   Example:  An applicant might state that his current employer 
   should not be asked for a reference check until the potential 
   employer makes a conditional job offer.  In this case, the 
   potential employer could not reasonably obtain and evaluate the 
   non-medical information from the reference at the pre-offer stage.


* Do offers have to be limited to current vacancies?

   No.  An employer may give offers to fill current vacancies or 
   reasonably anticipated openings.


* May an employer give offers that exceed the number of vacancies 
or reasonably anticipated openings?

   Yes.  The offers will still be considered real if the employer can 
   demonstrate that it needs to give more offers in order to actually 
   fill vacancies or reasonably anticipated openings.  For example, 
   an employer may demonstrate that a certain percentage of the 
   offerees will likely be disqualified or will withdraw from the 
   pool.

   Example:  A police department may be able to demonstrate that it 
   needs to make offers to 50 applicants for 25 available positions 
   because about half of the offers will likely be revoked based on 
   post-offer medical tests and/or security checks, and because some 
   applicants may voluntarily withdraw from consideration.

   Of course, an employer must comply with the ADA when taking people 
   out of the pool to fill actual vacancies.  The employer must 
   notify an individual (orally or in writing) if his/her placement 
   into an actual vacancy is in any way adversely affected by the 
   results of a post-offer medical examination or disability-related 
   question.

   If an individual alleges that disability has affected his/her 
   placement into an actual vacancy, the EEOC will carefully 
   scrutinize whether disability was a reason for any adverse action.  
   If disability was a reason, the EEOC will determine whether the 
   action was job-related and consistent with business necessity.


* After an employer has obtained basic medical information from 
all individuals who have been given conditional offers in a job 
category, may it ask specific individuals for more medical 
information?


   Yes, if the follow-up examinations or questions are medically 
   related to the previously obtained medical information.22

   Example:  At the post-offer stage, an employer asks new hires 
   whether they have had back injuries, and learns that some of the 
   individuals have had such injuries.  The employer may give medical 
   examinations designed to diagnose back impairments to persons who 
   stated that they had prior back injuries, as long as these 
   examinations are medically related to those injuries.


* At the post-offer stage, may an employer ask all individuals 
whether they need reasonable accommodation to perform the job?

   Yes.

* If, at the post-offer stage, someone requests reasonable 
accommodation to perform the job, may the employer ask him/her for 
documentation of his/her disability?

   Yes.  If someone requests reasonable accommodation so s/he will be 
   able to perform a job and the need for the accommodation is not 
   obvious, the employer may require reasonable documentation of the 
   individual's entitlement to reasonable accommodation.  So, the 
   employer may require documentation showing that the individual has 
   a covered disability, and stating his/her functional limitations.

   Example:  An entering employee states that she will need a 15-
   minute break every two hours to eat a snack in order to maintain 
   her blood sugar level.  The employer may ask her to provide 
   documentation from her doctor showing that: (1) she has an 
   impairment that substantially limits a major life activity; and 
   (2) she actually needs the requested breaks because of the 
   impairment.

        Confidentiality

An employer must keep any medical information on applicants or 
employees confidential, with the following limited exceptions:

* supervisors and managers may be told about necessary 
restrictions on the work or duties of the employee and about 
necessary accommodations;

* first aid and safety personnel may be told if the disability 
might require emergency treatment;

* government officials investigating compliance with the ADA must 
be given relevant information on request;23

* employers may give information to state workers' compensation 
offices, state second injury funds or workers' compensation 
insurance carriers in accordance with state workers' compensation 
laws;24 and

* employers may use the information for insurance purposes.25

Below are some commonly asked questions about the ADA's 
confidentiality requirements.


* May medical information be given to decision-makers involved in 
the hiring process?

   Yes.  Medical information may be given to -- and used by -- 
   appropriate decision-makers involved in the hiring process so they 
   can make employment decisions consistent with the ADA.  In 
   addition, the employer may use the information to determine 
   reasonable accommodations for the individual.  For example, the 
   employer may share the information with a third party, such as a 
   health care professional, to determine whether a reasonable 
   accommodation is possible for a particular individual.  The 
   information certainly must be kept confidential.

   Of course, the employer may only share the medical information 
   with individuals involved in the hiring process (or in 
   implementing an affirmative action program) who need to know the 
   information.  For example, in some cases, a number of people may 
   be involved in evaluating an applicant.  Some individuals may 
   simply be responsible for evaluating an applicant's references; 
   these individuals may have no need to know an applicant's medical 
   condition and therefore should not have access to the medical 
   information.


* Can an individual voluntarily disclose his/her own medical 
information to persons beyond those to whom an employer can 
disclose such information?

   Yes, as long as it's really voluntary.  The employer cannot 
   request, persuade, coerce, or otherwise pressure the individual to 
   get him/her to disclose medical information.


* Does the employer's confidentiality obligation extend to medical 
information that an individual voluntarily tells the employer?

   Yes.  For example, if an applicant voluntarily discloses bipolar 
   disorder and the need for reasonable accommodation, the employer 
   may not disclose the condition or the applicant's need for 
   accommodation to the applicant's references.


* Can medical information be kept in an employee's regular 
personnel file?

   No.  Medical information must be collected and maintained on 
   separate forms and in separate medical files.26  An employer 
   should not place any medical-related material in an employee's 
   non-medical personnel file.  If an employer wants to put a 
   document in a personnel file, and that document happens to contain 
   some medical information, the employer must simply remove the 
   medical information from the document before putting it in the 
   personnel file. 


* Does the confidentiality obligation end when the person is no 
longer an applicant or employee?

   No, an employer must keep medical information confidential even if 
   someone is no longer an applicant (for example, s/he wasn't hired) 
   or is no longer an employee.


* Is an employer required to remove from its personnel files 
medical information obtained before the ADA's effective date?

   No.



NOTE: Index removed in ASCII version


1. Codified as amended at 42 U.S.C. §§ 12101-17, 
12201-13 (Supp. V 1994).

2. The analysis in this guidance also applies to federal 
sector complaints of non-affirmative action employment 
discrimination arising under section 501 of the Rehabilitation Act 
of 1973.  29 U.S.C.A. § 791(g) (West Supp. 1994).  In 
addition, the analysis applies to complaints of non-affirmative 
action employment discrimination arising under section 503 and 
employment discrimination under section 504 of the Rehabilitation 
Act.  29 U.S.C.A. §§ 793(d), 794(d) (West Supp. 1994).

3. 42 U.S.C. § 12112(d)(2); 29 C.F.R. §§ 
1630.13(a), 1630.14(a),(b).

4. 42 U.S.C. § 12112(b); 29 C.F.R. §§ 
1630.10, 1630.14(b)(3).

5. 42 U.S.C. § 12113(b); See 29 C.F.R. pt. 1630 app. 
§ 1630.2(r).

6. 29 C.F.R. § 1630.14(b)(1)(i-iii).

7. See 42 U.S.C. § 12201(b); 29 C.F.R. pt. 1630 app. § 
1630.14(b).

8. See 42 U.S.C. § 12201(c); 29 C.F.R. pt. 1630 app. § 
1630.14(b).  For example, an employer may submit medical 
information to the company's health insurance carrier if the 
information is needed to administer a health insurance plan in 
accordance with § 501(c) of the ADA.

9. Of course, an employer can always ask about an applicant's 
ability to perform the job.

10. Sometimes, applicants disclose disability-related information 
in responding to an otherwise lawful pre-offer question.  Although 
the employer has not asked an unlawful question, it still cannot 
refuse to hire an applicant based on disability unless the reason 
is "job-related and consistent with business necessity."

11. However, an employer cannot ask a question in a manner that 
requires the individual to disclose the need for reasonable 
accommodation.  For example, as described later in this guidance, 
an employer may not ask, "Can you do these functions with ___ 
without ___ reasonable accommodation?  (Check One)"

12. It should be noted that an employer might lawfully ask 
questions about the need for reasonable accommodation on the job 
and then fail to hire the applicant.  The rejected applicant may 
then claim that the refusal to hire was based on the need for 
accommodation.  Under these facts, the EEOC will consider the 
employer's pre-offer questions as evidence that the employer knew 
about the need for reasonable accommodation, and will carefully 
scrutinize whether the need to provide accommodation was a reason 
for rejecting the applicant.

13. However, investigators should be aware that Title VII 
of the Civil Rights Act of 1964, as amended, applies to such 
questions and that nothing in this Enforcement Guidance relieves 
an employer of its obligations to comply with Title VII.  The 
Commission has previously provided guidance for investigators to 
follow concerning an employer's use of arrest/conviction records.  
See Policy Guidance No. N-915-061 (9/7/90) ("Policy Guidance on 
the Consideration of Arrest Records in Employment Decisions under 
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
§ 2000e et seq. (1982)"); EEOC Compliance Manual, Vol. II, 
Appendices 604-A ("Conviction Records") and 604-B ("Conviction 
Records - Statistics").

14. "Drug" means a controlled substance, as defined in 
schedules I through V of Section 202 of the Controlled Substances 
Act (21 U.S.C. § 812).  29 C.F.R. § 1630.3(a)(1).

15. 42 U.S.C. § 12114(a); 29 C.F.R. § 1630.3(a).

16. Of course, an employer cannot use a test in violation of other 
federal civil rights statutes.  For example, if a test has an 
adverse impact under Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e et seq., it must be shown to be 
job-related and consistent with business necessity.

17. Although physical agility tests and physical fitness tests 
are not "medical" examinations, these tests are still subject to 
other parts of the ADA.  For example, if a physical fitness test 
which requires applicants to run one mile in ten minutes screens 
out an applicant on the basis of disability, the employer must be 
prepared to demonstrate that the test is "job-related and 
consistent with business necessity."

18. A polygraph examination purportedly measures whether a person 
believes s/he is telling the truth in response to a particular 
inquiry.  The examination does not measure health or impairments.  
Rather, it just measures relative changes in physiological 
responses of the test taker.

19.  But, if an individual is screened out because of disability, 
the employer must show that the exclusionary criterion is job-
related and consistent with business necessity.  42 U.S.C. § 
12112(b); 29 C.F.R. §§ 1630.10, 1630.14(b)(3). 

20. 42 U.S.C. § 12112(d)(3); 29 C.F.R. § 
1630.14(b)(1),(2).

21. Id.

22. Once again, if an examination or inquiry screens out someone 
because of disability, the exclusionary criteria must be "job-
related and consistent with business necessity."  Where safety 
considerations are the reason, the individual can only be screened 
out because s/he poses a "direct threat."

23. 29 C.F.R. § 1630.14(b)(1)(i-iii).

24. See 42 U.S.C. § 12201(b); 29 C.F.R. pt. 1630 app. § 
1630.14(b).

25. See 42 U.S.C. § 12201(c); 29 C.F.R. pt. 1630 app. § 
1630.14(b).  For example, an employer may submit medical 
information to the company's health insurance carrier if the 
information is needed to administer a health insurance plan in 
accordance with § 501(c) of the ADA.

26. A notation that an individual has taken sick leave or had a 
doctor's appointment is not confidential medical information.  Of 
course, documentation of the individual's diagnosis or symptoms 
would be medical information.