It is vital for private employers to understand what sort of medical inquiries may be made during the hiring process. The U.S. Equal Employment Opportunity Commission (EEOC) spells out the difference between lawful and unlawful medical inquiries under the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (ADEA). Section 501 of the Rehab Act, which applies to federal employees, adopts the standards of Titles I and V of the American Disabilities Act (ADA). This article will help your company avoid any unnecessary issues with the ADA and other federal anti-discrimination laws.
Medical inquiries and the ADA: Key ADA restrictions on medical inquiries of applicants:
- There is no exception to the straight-forward rule that disability-related inquiries or medical examinations are prohibited in the pre-offer stage of the application process.
- If applicants must fill out any medical questionnaires prior to the receipt of a conditional job offer, use of the forms violates the Rehabilitation Act [and the ADA].
- After a conditional offer is made, an employer may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category.
- Once employment begins, an employer generally may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
- In the post-offer stage of the application process individual applicants may be asked questions not asked of other applicants if those questions are “medically-related” to medical information previously received.
Under the ADA Amendments Act, withdrawing an offer based on the information obtained from a post-offer health history inquiry or follow-up medical questions will likely result in a finding that the applicant was regarded as having a disability. Therefore, the employer would be required to establish that the particular impairment renders the individual unqualified to perform the essential functions of the job or, where the employer has excluded the applicant due to safety concerns, that the applicant poses a direct threat because of the impairment.
When the applicant’s impairment substantially limits a major life activity or constitutes a record of a substantially limiting impairment, the employer’s determination of whether the applicant can perform the essential functions of the job must also include consideration of whether a reasonable accommodation would enable performance of the job functions or would reduce any direct threat to an acceptable level.
Pursuant to Title II of GINA, employers are prohibited from requesting, requiring, or purchasing genetic information — including family medical history — from applicants or employees, except under very limited circumstances. Therefore, questions about an applicant’s family medical history or genetic information are unlawful under GINA. “There is no exception to the general rule prohibiting employers from requesting genetic information of an applicant in a medical questionnaire.
Title VII, ADEA
Part of the Peace Corps’ application process included post-offer medical questionnaires required only of applicants in certain protected groups — e.g., a “Mammogram Form” required only of women age 50 and over. Thus, it appeared that women and a protected age group were required to undergo medical tests not required of applicants outside of these protected groups. This requirement raised a big red flag under Title VII, which prohibits sex discrimination, and the ADEA, which prohibits discrimination against persons age 40 and over. An application process with these requirements is deemed “facially discriminatory.”
What does all this mean for employers?
The EEOC points to several best practices worth keeping in mind:
- Do not subject applicants to disability-related inquiries or medical exams prior to a conditional offer of employment.
- After a conditional offer of employment, make disability-related inquiries and require medical exams only if the same is required of all entering employees in the same job category.
- After employment commences make sure that any disability-related inquiries or medical exam requirements are job-related and consistent with business necessity.
- Any post-offer questions not asked of others must be confined to those which are medically related to medical information already provided by the applicant.
- If an offer is withdrawn based on medical information provided by the applicant, make sure it can be established that either:
- the particular impairment at issue renders the individual unqualified to perform the essential functions of the job; or
- the applicant was excluded for safety reasons because he or she poses a direct threat due to the impairment.
- Do not ask questions about an applicant’s family medical history or genetic information.
- Do not make medical inquiries of or require medical exams for protected category members, such as women and older applicants, unless the same inquiries and exams are also imposed on applicants outside the protected categories
The impact of drug abuse on our national workforce is astounding. Every day, in every city throughout Hampton Roads and the nation, substance abuse costs employers billions.
FACT: Only about 23% of our Nation’s drug-abusers are sitting around in the abandoned buildings and back alleys of our cities ‘shooting up’ heroin, ‘snorting’ coke, ‘taking a hit’ of grass, or ‘popping’ some meth…’
FACT: The other 77% of all drug-abusers are EMPLOYED! (How many are employed by your company?)
Almost everyone has heard of Buzzed Driving, but have you heard about buzzed working? Additional facts, Drug Users:
- Are 5 times more likely to file workers’ compensation claims than non-drug users.
- Are involved in 200% to 300% more industrial accidents.
- Sustain 400% more compensable injuries.
The majority of employers are committed to providing their employees a safe, drug-free work environment. The weapon of choice is a Drug-Free Workplace program that includes: written policies, education, employee assistance programs, stiff consequences, and yes, drug testing. Leadership at your facility must be a fundamental component by enforcing strict and defined policies to guide and to hold all that fail accountable. Leadership must be engaged to support the clear mission because without it, the program will have no substance. Believe me, all employees will know.
However, it is imperative employers know and understand the dos and don’ts of drug testing, especially with the new OSHA rule which states you cannot have a blanket policy for post-accident drug testing. That means you cannot test everyone post-accident. If you do…you will be fined! In translating the rule it does not prohibit post-accident testing, but it does require that there be a reasonable possibility that drug or alcohol use by the employee was a contributing factor. This does not mean that the employee must appear to be impaired or under the influence after the accident. Instead, it requires that the nature of the accident is such that drug or alcohol use could have been a plausible factor. OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.” However, an employee who is injured when he inadvertently drives his forklift into another piece of stationary equipment can be drug tested. This would not be in violation because the employee’s conduct was directly tied to the injury, and drug use can impact conduct.
Do you know your State laws governing drug testing?
The FAQ page regarding the new rule on the federal OSHA website, https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html states, “If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.” While Virginia does not have a law governing workplace drug testing, other States do and testing required under federal or “other” state regulations, such as Department of Transportation (DOT) post-accident testing, is not impacted by the new rule.
Do have a random testing program; it will deter drug use in the workplace. Another alternative, particularly where drug use is suspected, would be to increase the frequency and scope of random drug testing. Industry experts agree that random testing is the single-most effective deterrent to workplace drug-abuse.
Do require your supervisors to be properly trained by a Substance Abuse Professional to identify drug and alcohol use. Training would alarm supervisors to identify whether reasonable suspicion exists based upon physical, behavioral, speech and performance indicators of probable alcohol or controlled substance use.
To alleviate time and money, do post in all employment ads that you are a Drug Free Workplace Employer. It’s a well-known fact that drug users are going to apply for a position at companies who do not have or enforce a drug-free workplace environment. Once again, the word does get around!
Be consistent with your drug testing program. Don’t pick and choose who you are going test. Follow ALL terms of your company’s written testing policy strictly, fairly, and equally with ALL employees-Do not engage in favoritism, or make exceptions.
As with any change in regulation, we recommend employers consult counsel to determine the proper steps for ensuring compliance with a drug-free workplace program in your state. You can save valuable time and money by making this a priority sooner than later!
About the Author
Stella McClain is Director of Operation and Third Party Administration for Taylor Made Diagnostics (TMD), a leader in providing occupational medical services and workers’ compensation care for all types of industries. For over 18 years TMD has been both provider and resource specializing in DOT and OSHA regulations as well as clinical testing, wellness programs, physical ability assessments and other critical services. She can be reached at 757-494-1688 or via email: firstname.lastname@example.org.
While beards and mustaches are very fashionable, they do present a challenge to workers who are required to use a respirator and receive proper fit testing in accordance with OSHA standard as referenced in 1910.134(g)(1) Face piece Seal Protection. Facial hair can put workers at increased risk because a beard or mustache, if not trimmed properly, can compromise the performance of tight-fitting respirators. Anything that comes between the face and the respirator’s seal, or gets into the respirator’s valves, can allow contaminated air to leak into the respirator face piece, reducing your worker’s protection.
Higher than expected exposures to a contaminate may occur if users have poor face seals with the respirator, resulting in excess leakage. No attempt should be made to fit a respirator on an employee who has facial hair which comes between the sealing periphery of the face piece and the face, or if facial hair interferes with normal functioning of the exhalation valve of the respirator. Employees should be monitored throughout the fit testing process to determine if they can keep a seal during respirator use.
Respirator Usage Written Program
OSHA mandates that all employers requiring respirator usage have a written program. That program should include defining facial hair policies if tight-fitting respirator masks are used. Often, this is enforced only at the time of hire or at annual fit-testing; yet, it is equally important to monitor and remind employees of the policy and its purpose throughout the year. A mustache grown for a social cause is not necessarily a point of concern – as long as it is trimmed and maintained to the point that it does not violate the seal area of the respirator and the length does not interfere with exhalation valves, which prevent inward leakage of hazards during inhalation.
Understand OSHA Guidelines
Whether you are fit testing internally, or using an outside vendor, ensure your written program includes a facial hair policy and that your fit testers clearly understand OSHA guidelines for fit testing. The OSHA Respiratory Protection Standard addresses the issue of respirator use and facial hair; clearly stating tight-fitting respirators are not permitted to be worn by employees who have facial hair that comes between the sealing surface of the face piece and the face, or that interferes with valve function. Be sure your workers are aware and understand the purpose of the regulation, as it will eliminate delays in the fit testing process, and ensure your workers are fully protected while wearing the respirator at all times.