E-Alerts

EEOC Issues Informal ADA Guidance Addressing Four Common Disabilities

[September 27, 2013]  The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued four informal guidance documents relating to the Americans with Disabilities Act (“ADA”), as amended by the ADA Amendments Act of 2008 (“ADAAA”).  The guidance documents, which are presented in a question-and-answer format, provide practice guidance for employers on a wide range of ADA issues in the context of four specific medical conditions:  cancer, diabetes, epilepsy and intellectual disabilities.

Although the guidance documents are not formally binding, courts often give significant weight to the EEOC’s views in deciding ADA cases.  Further, EEOC investigators will almost certainly consider the guidance documents in evaluating potential ADA claims and deciding whether to initiate litigation.  Accordingly, employers should carefully review the guidance documents and consider whether their policies and practices regarding accommodating disabilities need to be modified.

Overview of Guidance Documents

While this article does not cover every aspect of the EEOC’s guidance documents, some of the key ADA issues they address are outlined below:

Whether A Condition Is A Disability
The guidance documents note that under the liberal definition of “disability” embodied in the ADAAA, an individual with cancer, diabetes, epilepsy or an intellectual disability “should easily be found to have a disability.”  Thus, in the guidance documents, the EEOC focuses not on whether individuals with these conditions are disabled for purposes of the ADA, but rather on how the statute requires that such individuals be treated.

Pre-Offer Medical Inquiries
In accordance with the ADA’s requirements generally, the EEOC states that prior to making a conditional offer of employment, an employer may not ask a job applicant if he or she has (or ever has had) one of the four conditions addressed in the guidance documents, or ask the applicant about any treatment he or she may have received for it.  Further, if an applicant voluntarily discloses that he or she has one of those conditions, the employer may not ask follow-up questions or otherwise seek additional information about the condition, unless the employer reasonably believes that the applicant would require an accommodation to perform the job.  In that case, the employer may ask the applicant whether he or she will need an accommodation and, if so, what type of accommodation would be required.

Post-Offer Medical Inquiries
The guidance documents note that if an applicant who has received a job offer discloses that he or she has a disability, then the employer may ask the applicant additional questions, such as whether he or she is undergoing treatment or experiencing any effects that could interfere with the applicant’s ability to perform the job, or that may require a reasonable accommodation.  In addition, the employer may ask the applicant to undergo a follow-up medical examination or submit documentation from his or her physician as to the applicant’s ability to safely perform the functions of the job.

Once an employee has begun working, if the employer reasonably believes that performance problems the employee is displaying may be related to a medical condition, the employer may ask disability-related questions or require the employee to undergo a medical examination.  However, the EEOC stresses that in many instances, “poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.”

Providing Reasonable Accommodations

Under the ADA, when an employee requests an accommodation for a disability, the employer must engage in an “interactive process” with the employee to identify the functional limitations resulting from the employee’s disability and any potential reasonable accommodations that would allow the employee to perform the essential functions of the position.

The EEOC’s guidance documents highlight various accommodations that might be appropriate for the specific medical conditions addressed.  For example:

• Employees with cancer may need additional leave to attend doctors’ appointments or recuperate from treatment, and may need periodic breaks to rest or take medication.  They also may require modification of the office air temperature.
• Employees with diabetes may need a place to test their blood-sugar levels, administer insulin injections, and rest until their blood-sugar levels return to normal.  They also may need additional breaks to eat, drink, take medication, or test their blood-sugar levels.
• Employees with epilepsy may need extra breaks to take medications, a private area to rest after a seizure, a mat to cushion a fall during a seizure, or a regular schedule to allow for adequate rest.
• Employees with intellectual disabilities may need reallocation of marginal tasks to other employees, extra training when necessary, detailed schedules for completing tasks, or modification in the way supervisors give them instructions (e.g., giving instructions at a slower pace, breaking job tasks into sequential steps, or providing a tape recorder to record directions).

The guidance documents emphasize, however, that the specific needs of an individual with a disability ultimately determine what accommodations (if any) are appropriate and reasonable.  Further, the guidance documents note that an employer need not eliminate essential functions of a job or provide the precise accommodation requested by an employee, so long as the employer offers a reasonable accommodation.

Confidentiality of Medical Information
In the guidance documents, the EEOC reminds employers that they generally may not disclose an employee’s disability (whether cancer, diabetes, epilepsy, an intellectual disability, or otherwise) to the employee’s co-workers, even if the employer’s intention is simply to reassure the employee’s colleagues as to his or her well-being or to explain why the employee is receiving a work-related accommodation (e.g., being permitted to work from home or work a modified schedule).

In this regard, the guidance documents note that if an employer simply tells co-workers that an employee is receiving an accommodation, that statement itself “amounts to a disclosure that the employee has a disability.”  Thus, the EEOC advises that if an employee asks about a colleague’s medical condition, the employer should respond that its policies prohibit it from discussing an employee’s work situation with co-workers.

However, an employer may provide information about an employee’s disability to managers or others who need to be aware of the information (e.g., in order to provide a workplace accommodation to the employee).

Leave As An Accommodation
The guidance documents state that a leave of absence may be a reasonable accommodation for an employee with cancer, epilepsy, or diabetes, and that an employer may not automatically deny a request for leave merely because the employee cannot specify an exact return date.  Indeed, in some circumstances, an indefinite leave may be a reasonable accommodation.  In such instances, however, an employer may require periodic updates on the employee’s condition and potential return date.

Safety Concerns

Under the ADA, an employer may terminate or decline to hire an individual if his or her disability would present a “direct threat” of substantial harm to the individual or others in the workplace.  In the guidance documents, the EEOC notes that, depending on the nature of the job, an individual’s epilepsy or diabetes may present such a direct threat, if a seizure or insulin reaction on the job would pose “a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.”  The guidance documents discuss the factors involved in such determinations and emphasize that they must be based on objective, factual evidence.

Recommendations For Employers

In response to the EEOC’s ADA guidance documents, employers would be wise to:

• Have their human resources professionals review the guidance documents carefully, as they provide a clear, practical overview of the requirements of the ADA;
• In consultation with employment counsel, review their ADA policies and practices and revise them as necessary to ensure compliance with the statute, both generally and in the specific contexts of cancer, diabetes, epilepsy, and intellectual disabilities; and
• Provide regular ADA training to all managers and supervisors, including with regard to recognizing requests for accommodations, appropriately addressing such requests, and maintaining confidentiality of employees’ and applicants’ medical information.

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If you have any questions about the EEOC’s guidance documents or need assistance with any other ADA-related matters, please do not hesitate to contact us.