The EEOC issued two informal discussion letters critiquing policies and forms used by unidentified public employers when making disability related inquiries of employees.  Although informal discussion letters are not “official” EEOC opinions, they provide guidance on an employer’s legal obligations.  In these informal letters, the EEOC reviewed the agencies’ fitness for duty exam forms and sample reasonable accommodation policy and accompanying questionnaires and found that they contained language that violated both the American with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

One Size Does Not Fit All

The sample policy and forms reviewed by the EEOC were obtained from the website of an unidentified state agency.  They were never used by any employer as an official reasonable accommodations policy.  Rather, the documents were posted for training purposes only.  Nonetheless, the EEOC cautioned against the use of sample policies and forms because they could result in employers not conducting thorough interactive processes.  Reasonable accommodations must be handled on an individualized basis.  The interactive process to determine if an accommodation is warranted is influenced by factors such as the nature of an employee’s disability, the employee’s job, and the work environment.  The EEOC observed that it is difficult to develop a policy and related forms that can address all variables.  The take away for employers here is that accommodations policies should be drafted broadly to allow flexibility during the interactive process.  In addition, each interactive process should be allowed to develop organically given the variables involved.

Employers Should Seek Only Information Needed to Address Job-Related Concerns

The medical history form used by one of the public employers for an annual fitness for duty exams asked “In the past five years, have you been hospitalized overnight for any reason?” and “In the past twelve months, have you seen a doctor for anything other than routine checkups?”  The EEOC deemed these questions improper because they would likely result in the employee revealing more information than is necessary to address specific job related concerns.  For similar reasons, the EEOC also cautioned against asking employees to disclose treatment plans and use or recommended use of any medications or devices.  While there may be circumstances where limited inquiry into these areas may be appropriate, the EEOC believed such questions are generally impermissible.  Under the ADA, an employer may ask disability related questions and require medical examinations only if they are job related and consistent with business necessity.  This means an employer may only ask questions necessary to establish that the employee has a disability and/or needs a reasonable accommodation.  An employer is not entitled to any medical information it wants at any time for any reason.

Do Not Request Family Medical History

The same medical history form also asked “Have you, or any of your immediate family (father, mother, sister and/or brother) ever had any of the following” and then listed a number of medical conditions for the employee to select. The EEOC concluded that this language violated GINA which prohibits employers from requesting, requiring, or purchasing genetic information of applicants and employees, including family medical history.  This means that an employer may not request family medical history as part of an employment related medical exam.

Think Broadly and Creatively When Suggesting Accommodations

Another problem noted by the EEOC is that the sample forms stated that an employer is not required to permit “unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation” and that working from home is “generally” not a reasonable accommodation “except in extraordinary circumstances.”  The EEOC objected to this language because it could lead to the inappropriate denial of a reasonable accommodation.  The EEOC have as an example an employee with epilepsy.  The employee may have one or two seizures a year requiring unscheduled leave of one day each time.  The fact that the leave is unscheduled, or could be characterized as erratic, unpredictable and intermittent, would not mean that the employer can deny this type of leave.  An employer would have to grant leave under this scenario as a reasonable accommodation unless it could show undue hardship.  As for working from home, some courts have held that this can be an appropriate accommodation depending on the nature of the employee’s disability and the job position.

The key point for employers here is that policies and forms that contain language that could result in the denial of a reasonable accommodation may violate the law.  Another way this can happen is when these documents only focus on certain accommodations.  For example, forms that list types of possible accommodations such as changes to work schedules or modifications to work stations may inadvertently result in the exclusion of other accommodations.  Therefore, policies and forms should be written in a way to allow an employer the ability to think broadly and creatively when evaluating potential accommodations.