On May 15, the Equal Employment Opportunity Commission (EEOC) issued new guidance on the applicability of the Americans with Disabilities Act (ADA) to job applicants and employees with cancer, diabetes, epilepsy and intellectual disabilities. A complete overview of the new guidance is provided on the EEOC website, in a section on disability discrimination is available here.
As EEOC Chair Jacqueline Berrien explained, “While there is a considerable amount of general information available about the ADA, the EEOC often is asked about how the ADA applies to these conditions.” The guidance anticipates and responds to some of those questions, providing examples of reasonable accommodations employers may be expected to make for employees with one of the conditions.
The guidance defines each of the four conditions and identifies them as protected disabilities under the ADA as amended by the American with Disabilities Amendments Act of 2008 (ADAAA). Just as the ADA’s definition of “disability” includes a “record” of impairment that rises to the level of a disability, cancer that is in remission or diabetes that is controlled by medication or diet are considered disabilities.
According to the EEOC, an “intellectual disability” exists if one’s IQ is below 70-75; one is limited in “adaptive skill areas” such as communication, self-care, home living, social skills, health and safety, self-direction, functional academics such as reading, writing or math; and the disability originated before the age of 18.
Obtaining and Disclosing Medical Information
The ADA has long prohibited employers from asking a job applicant about his or her disability before an offer is made unless the disability is obvious or voluntarily disclosed. Inquiries are permitted after an offer is made, so long as all similarly-situated applicants are treated the same. Once the employer obtains medical information, it may follow-up with questions such as whether the condition will interfere with the employee’s ability to do the job.
The guidance explains, for example, that if a candidate for a chef position discloses his epilepsy in his post-offer medical evaluation, the employer may ask whether he can safely work with hot and sharp objects. If the epilepsy is controlled by medication and the candidate has safely worked as a chef for several years, the employer may not withdraw the offer. An employer may request documentation from the candidate’s doctor verifying the condition. Except in specified circumstances, an employer must not disclose any information about the employee’s condition.
Under the ADA as amended, an employer must provide a reasonable accommodation if an employee requests one or the need for the accommodation is evident, so long as the request does not impose an undue burden. For each of the four conditions discussed, the EEOC suggests a number of reasonable accommodations.
For a person with an intellectual disability, reasonable accommodations might include reading written instruction aloud, expanding trainings and using demonstrations, placing pictures or color-coding instead of words on labels. If an employee is limited from performing functions that are marginal to a job, like closing out the register at a concession stand at the end of an evening, that person may be assigned alternative tasks, such as cleaning.
Reasonable accommodations for diabetes include providing a private place to administer injections and breaks to eat, drink, take medication or check blood sugar levels as needed. For cancer, reasonable accommodations include leave for doctor’s appointments, rest or medication breaks, a modified schedule, permission to work from home, or change in office temperature. The guidance encourages flex-time schedules or shift changes to permit employees to attend weekday radiation treatments or doctor’s appointments during regular business hours.
For epileptics, common reasonable accommodations include permission to bring a service animal to work, providing a driver for meetings and other work-related events, or permitting work from home.
Employers must be careful not to act on the basis of myth, fears or stereotypes in addressing workplace safety concerns. Refusing to hire--or terminating--an individual with a disability for safety reasons must be justified by a “direct threat” of substantial harm that cannot be eliminated or reduced by reasonable accommodation. The harm must be serious and likely to occur, not speculative.
For example, an epileptic welder who fails to take medication and experiences sudden and unpredictable seizures is a direct threat. An employer may not demote a cancer survivor because of fears that job stress may cause a relapse. Similarly, an employer should not assume that a person with intellectual disabilities may not work in a kitchen with sharp knives and hot ovens unless it has specific information indicating that the employee cannot understand and follow safety procedures. Finally, to prevent harassment in the workplace, the EEOC suggests that employers maintain and enforce a written policy and conduct periodic training.
In light of recent EEOC lawsuits under the Genetic Information Non-Discrimination Act, the new guidance suggests that the EEOC is paying heightened attention to the intersection of health matters and discrimination in the workplace, particularly when such discrimination may be related to one of the four conditions specified.
Employers with current or prospective employees with any of the conditions specified should review the new guidance to ensure compliance.