U.S.
Department of Labor
Employment
& Training Administration
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1. Purpose The purpose of this bulletin is to provide additional written
information on questions about medical exams, disabilities and related
topics. It is also intended to
emphasize the importance of encouraging annual medical examinations for program
participants. 2. Reference The SCSEP regulations, at 20 CFR Sections 641.309(b) and 641.311(b)(3);
section 504 of the Rehabilitation Act of 1973; the Americans with Disabilities
Act (ADA) of 1990; and their implementing regulations. 3. Background A
number of questions have been generated by the May 17, 1995 SCSEP regulation
regarding physical examinations and disabilities. Our experience since issuing the regulations indicates that
additional information would be helpful.
Moreover, it appears that many enrollees are no longer taking advantage
of the physical examination program benefit. A common medical recommendation for people over the age of 50
is that they receive an annual physical exam.
Physicals can identify serious medical problems. Recently, after
physical exams, several enrollees at a project were found to have been exposed
to tuberculosis. As a result of these
exams, these people were able to get appropriate medical attention. The provision of free physical examinations
has been a long-standing SCSEP program benefit that has been utilized by
hundreds of thousands of SCSEP participants.
Unfortunately, implementation of the 1995 regulations has resulted in
fewer enrollees taking advantage of this benefit. 4. Policy Each SCSEP enrollee must be offered a physical exam upon entrance
into the program, and at least annually thereafter. It is the policy of the
Employment and Training Administration to actively promote this program benefit
for each enrollee. Widespread failure
by projects to encourage exams through non-coercive measures may be considered
a program deficiency. Documentation of
waivers by enrollees of their rights to physical exams are of considerably
lesser importance than are records maintained by the project showing that the
enrollees have had annual medical exams.
5. Purpose of Physical Examinations.
Examinations should not be arranged for the purpose of determining
whether an enrollee is "fit to work." Concerns about the expenses of workers' compensation or other
liability claims should not be a programmatic matter (although they clearly do
constitute a managerial consideration).
Physicals should be viewed as a benefit associated with SCSEP program
participation; they can be useful in helping participants make informed
judgements about their ability to perform certain work assignments, and in providing them with information on their
general health. 6. Arranging Physicals. Examinations need not be financed through the SCSEP. If enrollees have health insurance,
including Medicare or Medicaid, and a preferred private physician, it is
acceptable for annual physicals to be conducted in that manner. Some local projects arrange for physicals in
conjunction with the local Public Health Service, which is also used as a host
agency worksite. One national sponsor
arranges medical examinations as part of the intake process; at the conclusion
of the enrollment interview, the individual is told the time, date and place of
the appointment. They are asked to keep
that appointment unless it is necessary to reschedule. 7.
Action SCSEP sponsors
should review the attached Questions and Answers, and share copies with
appropriate staff. It may be necessary
for some sponsors to remind their staff and sub-projects of the importance of
the medical exam. Appropriate staff and
sub-projects should be advised of low-cost ways to arrange physical exams, e.g.
working with the Public Health Service, free clinics, and other sources of
medical examinations. If through their
own efforts enrollees obtain medical exams or have just had one, this will meet
the regulatory requirement. When
monitoring local projects, sponsors are encouraged to review the proportion of
enrollees who are receiving physical examinations arranged by the project. The attached information should answer many
questions of project sponsors and result in greater enrollee use of the free
medical examination program benefit. 8. Inquiries Questions may be directed to your Federal
Representative at (202) 219-5904. 9. Attachments Questions and Answers. ERICH W. ("RIC") LARISCH ANNA
W. GODDARD Chief Director Division of Older Worker Programs Office of National Programs TDNO:GGibson/MJ/1-30-98/Rm.N4644/219-5904 cc:
Goddard/Larisch/Gibson/Files-DOLQUE.1 QUESTIONS AND ANSWERS Q1:
Before offering an SCSEP applicant a program position, is it permissible
to request that the individual provide a doctor=s release to work, particularly if the
individual: !Receives Social Security Disability
Insurance (SSDI); !Has an obvious disability; !Receives any other disability payments from
another source; or !Appears frail or has indicated he or she has
a health problem. A1:
No. The Americans with
Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (referenced in
each grantee=s or sub-grantee=s grant agreement) prohibits making medical inquiries
(including medical examinations) before an offer of employment has been
made. Prior to offering a SCSEP
position (the pre-offer stage), medical inquiries are prohibited. This pre-offer stage should be focused
primarily on determining eligibility. Q2:
Once an SCSEP applicant is enrolled, may a medical inquiry be made? A2: After the applicant is enrolled (on the
payroll) and a suitable assignment is being developed (i.e., post-offer stage),
job-related medical inquiries are permissible to assist in matching the
participant (enrollee) with an assignment.
The medical inquiry should focus on the ability to perform essential
job-related functions; avoid general questions such as AHow is your health?@.
Avoid misinterpretations by clearly explaining to the participant that
the medical inquiry is made to assist in developing a suitable community
service training assignment. If post-offer medical inquiries are made,
they should be made of everyone. For
example, a grantee may ask all participants if they have recently been under a
doctor=s care.
The follow-up question of ADo you have a doctor=s release?@ can then be asked of those individuals who
answered Ayes@ to the first question. Do not limit the inquiry to persons who
appear to have a disability or medical problem. Judgments made based on appearances can lead to the perception
that discriminatory assumptions are being made. Q3:
After an applicant has been determined eligible and a tentative
assignment has been made, may the enrollee be asked to take a physical
examination if everyone performing that assignment must take a physical? For example, a hospital may require all food
service workers to undergo a physical. A3: Yes, if required of others in that position. Q4:
Under the ADA, may an SCSEP grantee or sub-grantee require an enrollee
to provide a Areturn to work@ release from a treating physician or other
qualified medical practitioner if the enrollee has been out sick for several
days? A4: Yes.
An SCSEP grantee or sub-grantee may establish a leave policy that is applied uniformly to all enrollees. The policy may include the requirement that
an enrollee provide a doctor=s release before returning to his or her
community service assignment. Q5:
Is it consistent to require a return-to-work release from an enrollee
when the SCSEP project cannot require a physical exam? A5: Once an applicant (pre-offer) becomes an
enrollee (post-offer), the SCSEP project may require a physical exam in
accordance with the requirements of the Rehabilitation Act and the ADA at 29
CFR Section 32.15. The requirement to
provide a Areturn-to-work@
release is also permissible in the post-offer stage of SCSEP participation
provided the requirement is uniformly applied to all enrollees. The ADA and Section 504 of the
Rehabilitation Act prohibit pre-offer physical examinations. Please note that it would be inappropriate
to require a returning enrollee to provide a Areturn-to-work@ release if he or she has been absent from the program for such
a long period of time as to be considered a new applicant. In other words, the enrollee had been
terminated from the program and is not returning to his or her community
service assignment. In such an
instance, the status is that the former enrollee is an applicant in the
pre-offer stage. Q6: May an SCSEP project require an enrollee
to have a medical exam if the enrollee exhibits performance problems, even if
the enrollee has not been absent for health reasons? A6:
An enrollee may be required to take a physical or mental examination
when it appears that the enrollee is having performance problems on the
job. To avoid misunderstandings,
however, the examination should be required only after discussions with the
enrollee (and his or her supervisor, if appropriate). The discussions should focus on identifying the cause of the
performance problem. The SCSEP project and the enrollee should try to resolve
the performance problem. Do not assume
that the problem is the result of a disability; however, if a medical exam
reveals that a disability is the cause of the performance problem, the project
should work with the enrollee to determine whether a reasonable accommodation
can be made. Funds budgeted for
supportive services (other enrollee costs) may be used to assist in making
reasonable accommodations. Q7:
Are the terms Ahandicapped@ and Adisabled@ synonymous? A7: Yes.
Current convention refers to Aindividuals with disabilities@ to move the emphasis from the disability to the individual. Q8:
What is the definition of Ahandicapped@ or Adisabled@ as reported on the QPR? A8: An enrollee may be considered Adisabled@ for reporting purposes if they identify
themselves as having a substantial physical or mental impairment which is a
barrier to their employment (i.e., a major life activity). For example, an individual who currently
wears glasses to correct near-sightedness is not disabled, but a person whose
sight is deteriorating to the extent that they are deemed blind would be. Self-certification of a disability will
generally be considered adequate documentation verifying the disability. Q9:
Is self-certification of a disability acceptable for intake and
reporting purposes even if that person is not claiming a disability for income
eligibility purposes? A9: Yes.
If an individual claims income eligibility as a result of being a
disabled Afamily of one,@
however, self-certification is not sufficient; additional documentation is
necessary. Merely being a member of a
family that includes a disabled person is not adequate to be considered a
family of one. Q10:
Please list acceptable sources of documentation of disabled status for
income eligibility purposes.
A10: Acceptable sources of documentation include
but are not limited to the following: $ Social Security
Administration disability records; $ Department of Veterans
Affairs (or Veterans Administration)
record or letter; $ Statement of a
qualified medical practitioner; $ Workers= compensation determination; $ Vocational
Rehabilitation record or letter; $ Rehabilitation
evaluation; $ Sheltered workshop
certification; or $ Statement from a drug
or alcohol rehabilitation agency or program. Q11:
When Social Security Disability Insurance is converted to regular Social
Security insurance at age 65, must documentation be maintained of that person=s earlier status, thereby establishing that
individual=s eligibility as a disabled family of one? A11: Maintaining documentation of disability for
purposes of verifying eligibility is recommended. Q12:
Is a disabled person automatically SCSEP eligible? A12: No.
The person may be considered a family of one for income eligibility
purposes, but his or her income must still meet the income eligibility
criteria. Status as a Adisabled family of one@ should be considered when it would be
advantageous to the applicant. However,
there may be circumstances, when it would be more advantageous for the applicant to be considered a family of
two or more, and that would be permissable (e.g., individual with a disability
has income that would make the individual ineligible as a family of one,
but total family income for a family of
two or more would make the individual eliglible if considered as a member of a
larger family). Q13:
Suppose the project learns that an enrollee has a potentially fatal
heart condition that can be aggravated by his or her SCSEP participation. May that enrollee be terminated? A13: No, not for having a heart condition. Termination may violate the ADA. The project director should re-evaluate the enrollee=s assignment to ensure that the assignment does not pose a danger to the
enrollee or others. In addition, the
project director should discuss with the enrollee any potential hazards that
the assignment may pose. A
reassignment may be appropriate. Q14:
What is meant by the term Areasonable accommodation@? A14: AReasonable accommodation@ refers to making existing facilities or services accessible to
persons with disabilities. For SCSEP
participants, a reasonable accommodation will typically involve the structure
or content of a community service assignment.
Reasonable accommodation may also involve access to intake services or
training opportunities. Examples of
reasonable accommodations include providing sign language interpreters or participant
handbooks in Braille, moving intake services to first-floor offices when ramps
or elevators are not available, rescheduling community service assignments to
allow an enrollee to attend afternoon therapy sessions, etc. Whether an accommodation is reasonable
depends on the particular circumstances of each situation. It is a good practice to discuss potential
accommodations with the enrollee. SCSEP funds may be used to provide physical
and programmatic accessibility and reasonable accommodation, pursuant to the
SCSEP regulations at 20 CFR Section 641.403(d)(4). Generally, such costs should be charged to the Aother enrollee costs@ cost category. Q15:
What constitutes an Aundue hardship@ that would prevent a grantee or host agency
from making an accommodation for a participant with a disability? A15: Whether an undue hardship will result from a
particular accommodation depends on the particular circumstances. Factors to consider are the costs of the
accommodation, the financial resources of the organization, the impact on other
employees, the level of difficulty (time, technical expertise, etc.) involved
in implementing the accommodation, any disruption to the organization=s activities, and options available for other
accommodations. For example, installing
an elevator to the second floor may cause an undue hardship on a host agency;
however, setting up a first floor office in which the enrollee can work may not
be. Q16:
Who is responsible for making the accommodation, the host agency or the subgrantee/subproject? A16: It depends on what
accommodation is needed. Most host
agencies are covered by the ADA.
Generally, accommodations requiring building or equipment modifications
will be the responsibility of the host agency.
Accommodations requiring modification to the community service
assignment (i.e., duties, hours, etc.) may be jointly shared with the host
agency. Local SCSEP projects are encouraged to
coordinate efforts with other community organizations that assist in developing
reasonable accommodations, sometimes at no charge. Vocational Rehabilitation agencies may be helpful. The SCSEP project should be an advocate for
the enrollee. Identifying barriers to
the enrollee=s employment and implementing ways to
overcome those barriers should be part of the Individual Development Plan. Q17: May an enrollee be asked if he or she
has a disability for reporting purposes? A17: Yes. Q18: May a local project require
every enrollee to sign a waiver of the physical examination? A18: The physical examination is intended to be a
benefit of participation in the SCSEP, not a requirement. Grantees should encourage enrollees to
take advantage of this benefit. A
project has up to 60 working days after enrollment to obtain a physical
examination for each enrollee; therefore, mass waivers should not be
necessary. Grantees are encouraged to
evaluate approaches to making the benefit attractive to enrollees. In the few cases when an enrollee chooses
not to have the SCSEP-provided physical, he or she should sign a waiver form. Q19: May an enrollee be terminated for
refusing the physical examination and not signing the waiver within the 60-day
period? A19: No, the physical examination is not a
requirement of participation in the SCSEP.
The project should document that a physical exam was offered and refused
but the enrollee would not sign the waiver.
If, through their own efforts,
enrollees obtain medical exams or have just had one, this meets the
intention of the SCSEP regulations. Q20:
When does the 60 working days in which to provide physicals or document
refusals begin to run? A20: At the date of enrollment ( i.e., when
placed on the payroll). Q21: May a project require an
applicant to sign an agreement to give the project a copy of the physical
examination? A21: No.
The grantee may encourage the enrollee to voluntarily provide a copy of
the exam in order to assist in developing a suitable community service
assignment. If the enrollee does
provide a copy of the exam, it should be maintained in a separate secured file. Q22:
Should the participant intake form indicate the date the physical exam
was offered? A22:
Participant files must show when the
physical exam was offered. Each grantee
may establish its own procedures to ensure documentation; it need not
necessarily be the intake form. Q23:
Aren't we at greater risk of liability and higher workers' compensation
claims as a result of the implementation of this new policy? A23: There may be an increased risk, but there is
no objective data to support this hypothesis.
Anecdotal comments suggest that the types of physical examinations
conducted prior to this new policy were not detailed enough to limit any
perceived liability. Q24: Should evidence of a physical exam that
was conducted in 1995 or earlier be retained for the files? A24: Generally, there is no reason to keep these
earlier examination records. Q25:
Should information about an enrollee=s disability or the results of a
non-job-required physical examination be disclosed to a host agency or
employer? A25: Generally, information about an enrollee=s disability may not be shared with a host agency. Disability and other medical information
should be limited to: $ Employing officials
when the physical is required for the job classification (e.g. food service
worker, child or elder care, etc.); $ Supervisors and
managers who have a need to know in order to make decisions regarding necessary
accommodations; $ First aid and safety
personnel, when appropriate, to assist in providing emergency treatment; and $ Government officials
to assist in investigating Section 504 compliance. A good practice is to consult with host
agencies in advance about any health restrictions or requirements they have so
that the inquiry is not tied to a specific enrollee. Q26:
What are Federal guidelines on confidentiality? A26:
A grantee or subgrantee may not share with a potential host
agency information about an individual=s disability. For example, a local project staff person telephones a host
agency in an effort to place an enrollee.
During the conversation, the staff person explains that the enrollee in
question has multiple sclerosis and asks the host agency if they would be
willing to take such an enrollee. This
and any similar practice are strictly forbidden by section 504 and the ADA. It is also unlawful for a host agency, upon
finding that an enrollee has a disability, to refuse that enrollee because of
the disability. Federal guidelines
specifically prohibit a recipient from contracting with an agency that
discriminates. If such an incident were
to occur, the recipient would be expected to no longer contract with the agency
until the agency agreed to no longer discriminate. In addition, the following confidentiality
principle applies to medical information
--It should be collected and maintained on separate forms and filed
separately. If there are old medical records in an enrollee file, they should
be removed and placed into a separate file.
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