Recently we had a client pose an interesting question about providing accommodations to disabled temporary workers. A temp agency referred a worker to its client, but advised the client that the worker had requested certain accommodations for a disability. The agency was hesitant to provide any details or other information due to its concern that sharing its employee’s medical information would violate the privacy requirements of the Americans with Disabilities Act (ADA). The client was unable to fully assess the accommodation request or potential risks it presented without information about the extent of the worker’s disability.
In 1997, the Equal Employment Opportunity Commission issued an enforcement guidance on the applicability of EEO laws to contingent workers. The EEOC issued a subsequent questions and answers guidance focused on ADA accommodations by staffing agencies and their clients. Neither document directly addresses the question of the agency’s ability to share employee medical information for the purpose of providing requested accommodations.
The EEOC guidance states that the temp agency and its clients are joint employers, expected to work together to determine if reasonable accommodations can be granted. Both parties are entitled to conduct separate post-offer, pre-employment medical examinations based on business necessity. However, the guidance is silent over the staffing agency and client’s ability to coordinate these efforts by sharing their knowledge of the applicant’s medical condition and abilities. Absent the right to share such knowledge, it would be considerably more difficult to coordinate the response to the accommodation request.
Clients of staffing agencies may want to request express consent from the temp worker seeking an accommodation to allow access to medical information collected by the agency. In the absence of such consent, the client or agency could face claims that they violated the ADA’s medical information privacy requirements, even if the information shared was done so for purposes of attempting to accommodate a disabled worker.
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