An Introduction to What Health Professionals Need to Know
This brochure has been designed to assist health professionals
play a positive part in the employment of people with disabilities. Some health
professionals are concerned with the preparation of individuals to enter the
job market, others have hiring and return-to-work responsibilities, and still
others make decisions on job retention.
This guide may be helpful to the following:
- Physicians (examining, occupational medicine, rehabilitation),
- Nurses (occupational, rehabilitation, clinical, practical),
- Occupational Therapists,
- Physical Therapists,
- Employee Assistance Program Managers,
- Social Workers,
- Human Resources Personnel,
- Disability Management
- Personnel, Public and Private Rehabilitation Professionals,
- Educators, and
- Trainers.
The important issues include:
- Health examinations of applicants
- Health examinations of employees
- Evaluation of health examination results and confidentiality
- Knowledge of the essential functions of the job
- Knowledge of the important elements of job accommodations
- Education of employers, employees and professional colleagues
- Sensitivity to, and awareness of, the abilities and special
needs of people with disabilities
- Coordination of health care programs with human resources
planning.
CONTENTS
General Provisions of
the ADA Effective Dates of the ADA
Employment Requirements
Key Definitions Health Examinations of Job Applicants
The Basic Requirements: A Summary
Employer-Employee-Health Care Provider
Relationships Questions that Health Care
Professionals Often Ask Resource
List Contributors to this Brochure
The Americans with Disabilities Act (ADA) prohibits discrimination
against people with disabilities in employment, transportation, public
accommodation and activities of state and local government.
- Title I of the Act covers equal employment opportunity for
individuals with disabilities.
- Title II covers non-discrimination on the basis of disability
in state and local government services and includes employment.
- Title III covers access to places of public accommodation,
including professional offices of health care providers.
A full discussion of many of the subjects that follow can be found
in the Technical Assistance Manual published by the U.S. Equal Employment
Opportunity Commission.
Regulations covering Title I are effective as of July 26, 1992,
for employers with 25 or more employees, and July 26, 1994, for employers with
15 or more employees. (Enforced by Equal Employment Opportunity Commission.)
Regulations covering Title II and Title III of the Act became
effective January 26, 1992. (Enforced by Department of Justice.)
The ADA's Impact on Employment
- The ADA prohibits discrimination against qualified persons with
disabilities, whether disabilities are pre-existing, perceived or acquired
during employment (see full definition below.)
- The ADA employment provisions apply to private employers, state
and local govern-ments, employment agencies, labor orga-nizations, and joint
labor-management committees.
- The ADA requires non-discrimination in selection, testing and
hiring of qualified applicants with disabilities.
- The ADA requires non-discrimination in promotion and benefits.
- The ADA requires reasonable accommodation for employees with
disabilities when such accommodations would not impose an "undue hardship."
Reasonable accommodation is a concept already familiar to and widely used in
today's workplace.
Title I of the ADA prohibits discrimination in employment against
a qualified individual with a disability, and includes specific requirements
related to the full range of hiring practices, reasonable accommodation, terms
and conditions of employment, and other labor-management issues.
Title II of the ADA states that no qualified individual with a
disability shall, by reason of such disability, be excluded from participation
in, be denied benefits of, or be subjected to discrimination by a department,
agency, special purpose district, or other instrumentality of a state or a
local government.
The term "disability" means:
- a physical or mental impairment that substantially limits one
or more of the major life activities; for example, walking, seeing, speaking or
hearing;
- a record of such an impairment; for example, a person who has
recovered from cancer;
- being regarded as having such an impairment even when no
impairment exists, or no substantial limitations result from the impairment, or
the impairment is only substantially limiting because of the attitudes of
others; for example, a person who has a facial burn scar.
The term "qualified individual with a disability" means an
individual with a disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual
holds or desires.
The term "reasonable accommodation" may include:
- making existing facilities used by employees readily accessible
to and usable by individuals with disabilities;
- job restructuring, part-time or modified work schedules,
reassignment to a vacant position;
- acquisition or modification of equipment or devices;
- appropriate adjustment or modifications of health and/or job
related examinations, training materials or policies;
- the provision of qualified readers or interpreters; other
similar accommodations.
The term "undue hardship" means an action requiring significant
difficulty or expense. Factors to be considered in determining whether an
accommodation would cause an undue hardship include:
- the nature and cost of the accommodation;
- the resources and size of the business as a whole and of the
specific facility making the accommodation;
- the type of business operation, including the composition,
functions and structure of the workforce;
- the impact that the accommodation would have on the specific
facility making it and on the business as a whole.
- In general, a larger employer will be expected to make
accommodations requiring greater effort or expense than a smaller employer.
The post-offer health examination is an effort to determine if the
applicant has the present capacity to accomplish the specific duties of the
job, with or without reasonable accom-modation, in keeping with the physical,
environmental and psychological demands of the position. Individual
determinations are based on an assessment of the person's present ability to
perform essential functions of the job safely. (29 C.F.R.Section 1630.14)
The ADA indicates that "a covered entity may require a medical
examination AFTER an offer of employment has been made to a job applicant and
prior to the commencement of the employment duties of such applicant," and may
condition the offer of employment on the results of the examination, provided
that all entering employees in the same job category are examined irrespective
of disability (29 C.F.R. Section 1630.14(b).) An employer may give follow-up
tests or examinations where the initial examination indicates a problem that
may affect job performance and further information is needed (Section 6.4, the
ADA Technical Assistance Manual.)
Information obtained by the employer/decision maker regarding the
medical condition or history of the applicant or employee shall be collected
and maintained on separate forms and in separate files and treated as a
confidential medical record, except that (1) supervisors and managers may be
informed regarding necessary restrictions on the work or duties of the employee
and necessary accommodations; (2) first aid and safety personnel may be
informed, when appropriate, if the disability might require emergency
treatment; and (3) government officials investigating compliance with the ADA
shall be provided relevant information upon request.
The Title I Regulatory Appendix discusses when information
obtained from entrance examinations may be submitted to state workers'
compensation offices (29 C.F.R.Section 1630.14.).
The professional conducting the examination should be familiar
with the essential functions of the job being offered and have knowledge of
work demands. This may require consultation with personnel or human resources
professionals at the job site. Any criteria which screen out persons with
disabilities must be job-related and consistent with business necessity. Health
professionals should become familiar with job functions and with the range of
accommodations that are available.
The Office of Disability Employment Policy's
Job
Accommodation Network (JAN) is an international information and counseling
service which, by using a database and extensive files, can provide customized
information on appropriate accommodations that can make it possible for persons
with functional limitations to work. It is a free service accessed by calling
1-800-526-7234 or 1-800-ADA-WORK.
NOTE: The ADA contains two important exceptions to the ban on
pre-employment health exams. The first exception provides that tests to
determine illegal use of drugs are not "medical exams" under the ADA.
Accordingly, such drug tests may be given at any stage of the employment
process. This permits employers to ensure that the workplace is free from the
illegal use of drugs and to comply with other Federal laws regarding drug use.
At the same time, the ADA provides limited protection from discrimination for
recovering drug addicts and for alcoholics.(See Section VIII of the Technical
Assistance Manual for Title I.)
The second exception is that the regulations provide that a
"physical agility" test is not a "medical exam" under the ADA, and may be given
at any point in the application or employment process. Such tests must be given
to all similarly situated employees regardless of disability. If such tests
screen out or tend to screen out individuals with disabilities or a class of
persons with disabilities, the employer would have to demonstrate that the test
is job-related and consistent with business necessity, and that performance
cannot be achieved with reasonable accommodation.
The employer may require as a qualification standard that an
individual not pose a "direct threat" to the health and safety of the
individual or others, if this standard is applied to all applicants for a
particular job. The employer, however, must be prepared to show that:
- significant risk of substantial harm exists;
- specific risk is identifiable;
- a current risk, not a speculative or remote one, exists;
- assessment of risk is based on objective medical or other
factual evidence regarding a particular individual; and
- even if genuine significant risk exists, the employer considers
if it can be reduced or eliminated below the level of direct threat by
reasonable accommodation.
Under the ADA, "medical" documentation concerning the
qualifications of an individual with a disability, or whether this individual
constitutes a "direct threat" to health and safety, is not limited to
information from medical doctors. It may be necessary to obtain information
from other sources, such as nurses, physical therapists, occupational
therapists, psychologists, social workers, and other counseling professionals
knowledgeable about the individual and the disability concerned. It may also be
more relevant to look at the individual's previous work history in making such
determinations than to rely totally on an examination or tests by a health
professional.
29 C.F.R. Sections 1630.13 and 1630.14 of the ADA outline specific
and differing obligations of the employer at three stages of the employment
process:
- Before making a job offer, an employer may not make any health
inquiry or conduct any health examination. The employer may describe the job to
the applicant and ask whether the person can perform the job, with or without
reasonable accommodation. (Because drug tests are not considered medical
examinations, they may be given at any step of the process.)
- After making a conditional job offer, before a person starts
work, an employer may make unrestricted health inquiries "if such inquiries or
examinations are made of all applicants in the job category."
- After employment, any health examination or inquiry required of
an employee must be job-related and consistent with business necessity.
Examinations required under other Federal laws would meet this standard.
Voluntary examinations conducted as part of employee health programs are also
acceptable.
To summarize:
- Under the ADA, a health care practitioner may make available
whatever information is obtained in the course of a medical examination or
inquiry to the relevant person or team of persons responsible for making
hiring, placement or other relevant employment determinations in the employer's
structure.
- The confidentiality requirements of the ADA then govern the
employer/decision maker's actions in regard to this information. (See
discussion of employer confidentiality
requirements.)
- First aid and safety personnel may be given sufficient medical
facts to aid them if the condition might require emergency treatment.
Confidentiality must also be maintained.
- The decision to hire or not to hire, to promote or not to
promote, is a management decision.
Q. What kind of information may a therapist, nurse, social
worker, employee assistance professional or examining physician share with
relevant decision makers?
A. Under the ADA, a health care practitioner may make available
whatever information is obtained in the course of a medical examination or
inquiry to the relevant person or team of persons responsible for making hiring
or placement decisions in the employer's structure. The confidentiality
requirements of the ADA then govern the employer/decision maker's actions in
regard to this information. The employer may be particularly interested in
information that pertains to the applicant's or worker's ability to currently
perform the essential functions of the job, with or without reasonable
accommodation.
Q.What are considered "essential functions" of a job?
A. The term "essential functions" means the fundamental job duties
of the employment position. It does not include marginal functions. A
function may be essential for several reasons, including but not limited to the
following: there are a limited number of employees available among whom the
performance of the function can be distributed; the position exists to perform
the function; the function is highly specialized; the function cannot be
removed from the job requirements without fundamentally altering the position.
Q. How can "accommodations" make it possible to overcome a
perceived functional limitation?
A. Accommodations are simply adjustments to any part of the job
process that make it possible for a specific individual to achieve the same
level of performance as is expected of all workers. An accommodation could
involve the use of a device or alteration of hardware that makes performance
possible. Or it could be a modified work schedule, or a part-time reader or
interpreter, or job re-structuring. Examples of each are many, and information
can be acquired from various sources. Information can be obtained from the
Office of Disability Employment Policy's Job
Accommodation Network (JAN) at 1-800-526-7234 (a free service), from state
and local rehabilitation facilities, from local independent living centers for
people with disabilities, and from the specific individual whose limitations
are being accommodated. The Office of Disability Employment Policy can also
provide names of other resources, such as Governor's Committees in each state.
(A recent study showed that two thirds of suggested accommodations cost less
than $500 and 31% cost nothing.)
Q. Why is it important that professional people who work in the
health care field know what the "essential functions" of the job are?
A. When you are preparing a person with a disability to apply for
work or return to work, with or without accommodation, you should know what
options can be suggested to accommodate the functional limitations of the
worker. These options must be job-related, so you need to know the functions of
the job. By combining your professional knowledge with knowledge of the job,
you can make meaningful suggestions for accommodation. Do not rely on general
listings of job titles and descriptions for this information; they often do not
describe what, in reality, it takes to do the job.
Q. How can a health care professional be sure that employment
of the individual with the disability won't be a safety risk for that person
and/or for others?
A. While employers may use as a qualification standard the
requirement that an individual not pose a direct threat to the health or safety
of self or others, that determination must be based on an individualized
assessment of present ability to safely perform essential functions of the job.
The health care professional may indicate specific work restrictions, if
applicable. The ADA does not override health and safety standards established
under other federal laws such as those imposed by OSHA or the Department of
Transportation. The ADA does not override state and local laws unless
there is a conflict, in which case the ADA standards would prevail.
Q. What happens if the health information gathered reveals that
the applicant or worker does not satisfy certain employment criteria?
A. The employer must show that the exclusionary criteria which
screen out or tend to screen out individuals with disabilities are job-related
and consistent with business necessity. If this standard cannot be met, the
exclusionary criteria are discriminatory. Even if an employer can prove that
the exclusionary criteria are job-related and consistent with business
necessity, the employer could not exclude an individual with a disability if
the criteria could be met or job performance accomplished with reasonable
accommodation.
Q. Are job-related physical agility tests considered medical
examinations?
A. No, and they may be given at any point in the application or
employment process and must be given to all similarly situated applicants or
employees regardless of presence of a disability.
Q. If, as the result of a health examination, a previously
undisclosed disability is identified, or if a worker voluntarily discloses a
pre-existing condition, must the employer still make accommodation if
needed?
A. Yes, the employer's obligation is always present to make it
possible for a qualified person with a disability to do the job, no matter when
the disability is made known. If the worker is transferred to another job,
pertinent health information can be transferred to a new supervisor on a "need
to know" basis, but all health information and records must still remain
confidential.
Q. Who may ask questions about an applicant's workers'
compensation history?
A. Questions may be asked only as part of the post-offer health
examination, after a conditional job offer has been made. However, employers
may submit information obtained from entrance examinations to state workers'
compensation offices or second injury funds in accordance with state workers'
compensation laws. Information obtained in the course of a permitted entrance
examination or inquiry may also be used for insurance purposes in a manner not
inconsistent with the ADA requirements.
Q. When may a health exam be given, and where?
A. A health examination may be given after a conditional
job offer is made to a qualified applicant so long as it is required of all
applicants in the particular job category, regardless of disability.
Examinations of employees are allowed only when such examinations are
job-related and consistent with business necessity, including when there is a
need to determine whether an employee can still perform the essential functions
of the job or to determine an appropriate accommodation. Health exams are also
permitted as required under federal law (e.g. OSHA-mandated hearing
conservation tests); and there is no prohibition against voluntary employee
health exams. The examination may be performed in the occupational health
facility of the employer, or in a consulting health facility external to the
company.
Q. Is testing for illegal use of drugs considered a "medical
exam"?
A. No. Such tests are not medical exams. Employers are
subject to other Federal laws pertaining to drug use, such as the Drug-Free
Workplace Act.
Q. May an employee be discharged for current alcohol abuse when
the individual also has another disability?
A. Yes. Successful performance on the job must be the criterion
for retaining an employee. If the alcohol abuse interferes with job
performance, the employee may be discharged whether or not another disability
is present.
Q. How will the ADA relate to injured workers and their
rehabilitation and return to work?
A. The fact that the employer may not discriminate against a
worker returning to work following injury should lead health care providers to
plan for and encourage return to the job. Knowledge of jobs and possible
accommodations is important.
Q. Are people who test HIV-positive or have AIDS covered by the
ADA, and, if so, how closely should the health care practitioner follow the
individual with testing?
A. Yes, both categories of people are covered by the ADA and, if
qualified for the job, may not be denied employment on the basis of their
disability under any of the three parts of the definition of covered
disability. Their condition should be treated the same as any other disability:
as long as the individual can do the job, with or without accommodation, that
person should continue to work. The condition does not constitute a safety
threat to other employees under normal working conditions, and all health
information about the condition must be kept confidential.
Q. May an employer require a health examination of workers?
A. An employer may require a medical examination of an employee
only if the medical examination is job-related and consistent with business
necessity. This could include examinations necessary to determine if an
individual can still perform the essential functions of the job, or to
determine a needed reasonable accommodation. This could also include
fitness-for-duty examinations required by law that are not inconsistent with
the ADA. Furthermore, voluntary medical exams are permitted as part of employee
health programs.
Q. Are hearing and vision evaluations allowable for job
applicants or workers in jobs that require a certain level of hearing or
vision?
A. If the job requires a particular level of hearing and/or
vision, testing may be part of determination of qualification, provided that
all applicants for that job are tested. This type of testing would also
be considered job-related and consistent with business necessity for current
employees.
Resource List
Equal Employment Opportunity Commission Office of Legal
Counsel, ADA Services 1801 L Street, NW Washington, D.C.
2004-1111 (202) 663-4503 or 1 (800) 669-3362 Voice (202) 663-7026 or 1
(800) 800-3302 TTY
National Institute on Disability and Rehabilitation Research:
Disability and Business Technical Assistance Centers 1 (800)
949-4ADA
U.S. Department of Justice Office on ADA P. O. Box
66738 Washington, D.C. 20035-9998 (202) 514-0301 Voice (202)
514-0307 Voice (202) 514-0383 TTY
The Office of Disability Employment Policy 1331 F
Street, NW, Suite 300 Washington, D.C. 20004-1107 (202) 376-6200
Voice (202) 376-6205 TTY
The Office of Disability Employment Policy's
Job Accommodation Network 918
Chestnut Ridge Rd., Suite 1 P. O. Box 6080 Morgantown, WV
26506-6080 1 (800) 526-7234 1 (800) ADA-WORK
Contributors to This
Brochure
This brochure has been sponsored by members of the Medical and
Insurance Committee of the Office of Disability Employment Policy. The Medical
and Insurance Committee includes representatives of major organizations and
individuals who are leaders in efforts to facilitate employment of qualified
individuals with disabilities.
Contributors to this brochure include:
- Sheila Akabas, Ph.D, Director, The Workplace
Center, Columbia University School of Social Work
- Sergio Delgado, M.D., Immediate Past President,
American Academy of Disability Evaluating Physicians
- Rachel Ebert, M.S., RNC, American Association of
Occupational Health Nurses; Director, Occupational Health Services,
Marriott Corporation
- Paul S. Entmacher, M.D.
- Jean S. Felton, M.D.
- Sheila T. Fitzgerald, R.N., Ph.D., Assistant
Professor, The Johns Hopkins University School of Hygiene and Public Health
- Eugene R. Gaeta, M.A., Director, Employee
Assistance Program, AT&T
- Donald E. Galvin, Ph.D., Washington Business Group on
Health
- David Gluck, M.D., Medical Director, Metropolitan
Life Insurance Company
- Sister Janet Henry, M.A. MPPM, American Hospital
Association
- James F. Wittmer, M.D., Vice President,
Director--Health, Environment and Safety, ITT Corporation
All public documents produced by the Office of Disability
Employment Policy are available in alternative formats.
May 1993 |