On May 15, 2013, the Equal Employment Opportunity Commission (EEOC) issued updates to four informal "Question and Answer" guidance documents relating to protections against disability discrimination under the Americans with Disabilities Act (ADA). Each of the guidance documents, which are available on the EEOC’s website, focuses on a different condition (cancer, diabetes, epilepsy and intellectual disabilities) and, according to the EEOC, reflect changes made by the ADA Amendments Act (ADAAA) relevant to these four specific conditions.
Each of the guidance documents reiterates that the ADAAA significantly broadens the definition of "disability" under the ADA. Consistent with that premise, the EEOC notes that, with respect to each of the four conditions, an individual "should easily be found to have a disability" as each of the four conditions substantially limit a major life activity, such as: normal cell growth (cancer); endocrine function (diabetes); neurological functions (epilepsy) and brain function; learning; and reading and/or thinking (intellectual disabilities). Mitigating measures, such as insulin, medication or diet (in the case of diabetes); chemotherapy or radiation (in the case of cancer); or medication or surgery (in the case of epilepsy), may not be taken into account in making the determination of whether an individual is disabled.
The EEOC also emphasized that an individual with a history, or "record," of any of these conditions also has a disability within the meaning of the ADA. Further, the individual will also be covered under the "regarded as" prong of the definition of disability if an employer takes a prohibited action (such as a termination) because of one of these conditions or because the employer believes the individual has one of these conditions.
While the four guidance documents each focus on one of the four impairments, the topics addressed in each, and which are summarized below, arise in the context of many impairments/disabilities and may serve as practical guidance on the EEOC's interpretation of these issues.
Obtaining Medical Information Relating to an Individual's Cancer, Diabetes, Epilepsy or Intellectual Disability
Each guidance document reinforces that, prior to making a conditional offer of employment, an employer may neither ask a job applicant if he or she currently has or once had one of these conditions nor seek any information relating to any treatment for the same. The guidance documents further remind employers that, as a general rule, if an applicant voluntarily reveals having one of these conditions, the employer may not ask follow-up questions or seek additional information about the individual's condition. At the same time, should an applicant voluntarily disclose an impairment (or, in the case of an intellectual disability, should it be obvious that the applicant has such an impairment) and the employer reasonably believes that the individual will require an accommodation to perform the job, the employer may ask the applicant whether he or she will need an accommodation, and what type.
After an offer of employment has been made, an employer may ask an employee questions about his or her health, as well as require a medical examination, as long as all applicants for the same job are treated equally in terms of the questions asked and the examination required. The EEOC also emphasized that, after employment has commenced, if there is a reasonable belief that any work performance problems that an employee may have are related to the employee's medical condition, an employer may require medical documentation or a medical exam to ensure the employee is fit for duty. A medical exam is also permitted before allowing an employee, who was out on leave due to a disability, to return to work.
Further, the EEOC also notes that there are situations in which an employer may have discussions about an employee about his or her impairment, such as:
determining whether an employee can safely perform the essential functions of the job;
discussing what reasonable accommodations may be needed for an employee due to his or her cancer, diabetes, epilepsy or intellectual disability;
verifying the employee's use of sick time related to his or her disability;
enabling the employee to participate in a voluntary workplace wellness program.
Disclosure of Medical Information Relating to an Individual's Cancer, Diabetes, Epilepsy or Intellectual Disability
The EEOC also emphasized the significance of maintaining the confidentiality of an employee's medical information, even under the pressure of responding to questions from an employee's colleagues. For example, the guidance reminds employers that they may not disclose an employee's cancer, disability, epilepsy or intellectual disability to the employee's co-workers in explaining why the employee is allowed to do something that generally is not permitted (i.e., working from home, taking additional rest breaks or being given additional time to finish assignments, as reasonable accommodations). Further, employers may not disclose an employee's disability as part of explaining any effects of the employee's condition, such as any weight loss, fatigue, insulin reaction or seizure, that may occur in the workplace.
There are some limited exceptions to the obligation to maintain as confidential any medical information obtained from an applicant or employee related to his or her impairment. They would include emergency situations in which first aid or safety personnel need to be notified and providing information to those who need to know as part of the reasonable accommodation process or when legal obligations (e.g., responding to inquiries regarding workers' compensation claims) otherwise permit disclosure.
Providing Reasonable Accommodations to Individuals with Cancer, Diabetes, Epilepsy or Intellectual Disabilities
The guidance documents also reiterate what employers already know—there are no "magic words" an employee needs to use when requesting a reasonable accommodation. The employee need only indicate that he or she needs an adjustment or change at work due to his or her impairment. Further, consistent with the ADA, the guidance documents clarify that an employer:
can request medical information in the context of considering a request for a reasonable accommodation;
does not have to grant every request for a reasonable accommodation;
need not eliminate essential functions of the job; and
may need to provide multiple reasonable accommodations to a particular employee.
The guidance documents outline a variety of reasonable accommodations that may be needed by employees having one of these impairments. In the case of individuals with cancer, diabetes or epilepsy, reasonable accommodations may include breaks to take medication, leave to attend doctors' appointments or recuperate from any treatments, or modified work schedules. In addition, the guidance documents list common reasonable accommodations that are particular to each of these conditions. For instance:
Employees with cancer may need reasonable accommodations, such as permission to call doctors during the work day, modification of office temperature or permission to work from home.
Employees with diabetes may need reasonable accommodations, such as a place to test their blood-sugar levels, administer insulin injections and rest until any blood-sugar level disruptions return to normal; or additional breaks to eat, drink, take medication or test blood-sugar levels.
Employees with epilepsy may need reasonable accommodations, such as a private area to rest after any seizure, a rubber mat to cushion a fall during a seizure or regular scheduling to allow for adequate rest.
Employees with intellectual disabilities may need reasonable accommodations, such as providing assistance to complete application materials or to understand job evaluations, supervisor instructions or workplace policies; demonstrating (rather than just describing) what the job requires; placing their workstations in an area conducive to any employee limitations; allowing the use of a tape recorder to record directions for completing job tasks; or providing additional job training.
The guidance also states that in connection with a request for leave as a reasonable accommodation, the employee need not be required, as a condition of granting the leave, to give an exact date of return to work. However, the EEOC acknowledges that when an anticipated return-to-work date is postponed, an employer has the right to require periodic updates from the employee regarding his or her condition and expected date of return, all of which may be taken into account by an employer in determining the extent to which continued leave is a reasonable accommodation.
What This Means for Employers
What is apparent from the guidance documents is the EEOC's emphasis that the duty to accommodate these conditions is an ongoing one. Employers should anticipate, therefore, that the principles set forth in these guidance documents of easily concluding that a condition is a disability; broadly considering various accommodations; and maintaining the confidentiality of this medical information are likely to guide the EEOC's interpretation of whether an employer has met its obligations under the ADA.
Thus, employers should consider the types of accommodations suggested in these guidance documents when faced with an applicant or employee with one of these conditions. Similarly, there may be other conditions for which the EEOC's suggested accommodations may enable an employee to perform the essential functions of his or her position.
Employers may also want to ensure that managers and supervisors are trained to recognize accommodation requests and to adequately inform them that they should avoid making stereotypical presumptions about an individual's capabilities once they are notified that an individual has one of these conditions or any other impairments constituting disabilities. Supervisors and managers should also be reminded of their obligation to participate in the accommodation process to determine what accommodations may be provided, without an undue hardship.
For Further Information
If you have any questions about these recent EEOC guidance documents, how to handle requests for reasonable accommodations or dealing with the ADA more generally, please contact an attorney in the Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.