1. Nothing has changed regarding the fact that even though these are “virtually always” disabilities, employers still cannot ask applicants if they “currently” or “ever” “have had/been diagnosed and/or treated for them.”
Applicants also are not required to volunteer such information in the application process.
2. Regarding those applicants who choose to “volunteer” such information, employers are not permitted to ask any follow-up questions during the interview/application process, unless the applicant also “volunteers” as part of a general discussion of the job at issue that they also may have difficulty performing certain aspects of it. In other words, you can discuss any aspects of the job you would like to with the applicant, but cannot say, “Based on your cancer, do you think you can do this?” You would simply continue asking, “Can you do . . .?” and then discuss their answers/options if they say “no."
Miller & Martin Practical Note – We also have some additional “best practices to help avoid litigation” which are not part of the EEOC’s Q&A Guidance documents which can help you in this “applicant volunteers disability-related information” situation as it arises.
3. After making a job offer, employers can ask general health questions and may even require a medical examination, as long as they do so regarding all those to whom an offer is made for the same job/job category.
Miller & Martin Practical Note – Be careful what you wish for here. What are you going to do if you find out the person has/had cancer, etc. at this stage of the process? If they have told you in the application process that they can perform the essential functions of the job, all this information will do is cast a “shadow of doubt” over all of your future employment decisions regarding this person, unless you can show that those making each decision did not have access to it. For this reason, we would recommend only conducting fitness-for-duty tests or asking medical questions which are actually related to the job you have offered rather than using broad medical questionnaires or “complete medical exams.” Even this information should then be kept in a confidential medical file.
This post offer/pre-employment stage also would be when you would ask any job-related follow-up questions you need to regarding the person’s disclosed disability. For example, how often the person experiences hypoglycemic episodes and/or whether/what type of assistance they will need if their sugar drops at work. Job-related medical documentation concerning the condition also may be requested at this time regarding how often breaks will be needed to take insulin, get a snack, a drink, etc.
4. If an employee volunteers information concerning a disabling condition, all an employer needs to say in response is, “Please let us know if that will affect your job in any way” or “if you will need any assistance with your job.” If the employee then requests such assistance at some point, the employer would engage in the interactive process, which may involve getting some additional medical information from their treating physician, depending on what type of assistance they are requesting.
5. An employer also has an obligation to try to reasonably accommodate the disabling effects of the treatments for these conditions as well as of the conditions themselves.
6. Employers should not (and are not required to) presume that any and all performance issues stem from the disabling condition. If issues are noted at work, the employer should start out by simply asking the employee “what is causing this?” If the employee’s response relates to the disabling condition, the employer then may need to obtain more information about the condition in order to determine whether the employee can perform the essential functions of his/her job, either with or without a reasonable accommodation.
7. Employers are permitted to ask employees about these “virtually always” disabilities conditions as part of a voluntary wellness program.
8. Employers cannot tell an employee’s co-workers the reason for a disability accommodation (i.e., “We have to let Jerry come in late because he’s disabled”).
They also cannot tell others aside from those who may have an immediate need to respond what the employee’s disability is (i.e., “Julie has epilepsy and may have seizures at work. We just wanted everyone to know so you won’t panic if it happens.”), although the employee may decide to do so. Instead, the employer can (and should) have a plan of action in place (i.e., “If Julie has a seizure, call 911 -- or first contact a supervisor or the plant nurse and they will make the decision as to whether paramedics are necessary.”) The employee and usually his/her doctor should be consulted in designing these plans.
9. Employers do not have to eliminate an essential function of a disabled employee’s job, bump another employee out of a job the employee could do, or create a new job for the disabled employee. They may have to provide job coaches for those with intellectual disabilities as a reasonable accommodation, however. There are several state and federal programs which fund these for qualifying applicants/employees.
10. Employers also can exclude a disabled applicant or employee from a job where he/she poses a direct threat to him/herself or others. In analyzing the “direct threat,” the employer should consider (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.
11. The duty to accommodate a disabled employee is ongoing. If an initial accommodation is or becomes ineffective, others must be considered.
Each Q&A Guidance also provides several helpful examples of “what the EEOC would do” in particular situations involving each of these four disabilities.
Two new concepts also are addressed concerning diabetes and epilepsy.
1. If another federal law prohibits an employer from hiring a person who uses insulin or who has had a seizure within a certain period for certain jobs, the employer is not liable under the ADA for not hiring them – unless the other federal law includes an applicable waiver or exception.
2. Employers are entitled to obtain periodic updates that an employee is still able to perform his/her job safely if the employee is in a safety-sensitive position.
And two good reminders concerning those with intellectual disabilities –
1. They may need assistance with the application process as a reasonable accommodation.
2. They also may not be able to request assistance relating to their disabilities. In these instances, where the need for assistance and its relationship to the disability is obvious, employers need to suggest or try some alternative ways for them to do the job – for instance, using pictures or diagrams rather than written or oral instructions, or color coding certain bins or folders in addition to the written labels identifying their contents where it would not be an undue hardship to do so.
As always, should you have employment situations arise involving cancer, diabetes, epilepsy, intellectual disabilities or any other “virtually always” or a potential disability, please feel free to contact Stacie Caraway
or any other member of our Labor & Employment Practice Group