The EEOC Issues Guidance On Epilepsy, Cancer, Diabetes & Intellectual Disabilities
 
On May 15 the EEOC published new guidance on diabetes, cancer, intellectual impairments and epilepsy as disabilities. The guidance provides valuable information about the EEOC’s general approach to disabilities in the work place and some specifics about its interpretation of reasonable accommodation requirements that may not in every respect agree with existing judicial decisions. The guidance can be found at the following web addresses:

THE EEOC'S UNDERSTANDING OF "DISABILITY"

Each guidance follows the same format, beginning with a description of the disability. These descriptions are a reminder that the expanded definition of a disability under the 2008 ADAAA will include many medical conditions, even if treatable or in remission. The guidance for cancer, for example, notes that cancer in remission is nonetheless a disability. See, 42 U.S.C. 12102(4)(D) and Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173, 1185 (E.D. Tex. 2011). For employers the message is that arguments over whether an employee is disabled will be more difficult than in the past, and that, as Congress intended, “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” Id. at 1185, quoting Pub.L.No. 110-325, 122 Stat at 3554.

OBTAINING, USING AND DISCLOSING MEDICAL INFORMATION

The next section of each guidance describes when an employer can inquire about a disability and what questions are permitted based on the EEOC’s understanding of 42 U.S.C. §12112(d). The EEOC breaks the application process into three distinct phases – the initial application, the period after a conditional offer of employment, and the period of employment.
  • Application period. During the application period no questions about disabilities or medical conditions are permitted. If the prospective employee voluntarily reveals that he or she has a disability, the only question permitted is whether and what type of accommodation the employee may require. The new guidance suggests that employers consider carefully how they ask about job qualifications. It can be easy to mistake a question about a condition for a question about a disability, and the examples in the guidance are helpful in making the distinction.
  • The post-offer period. An offer of employment can be conditioned on a medical examination related to the job itself. Additionally, after an offer is made the employer is free to ask questions about medical conditions and disabilities, and to require a medical examination as long as the same questions are asked of all those to whom similar offers are made. However, the employer may not withdraw the offer as long as the applicant can perform “the essential functions of the job” with or without a reasonable accommodation and without posing a direct threat to the health of himself or others. As discussed below, the “essential functions of the job” is an area in which the EEOC’s view may differ from that of most employers and in some cases, the courts. What constitutes a “reasonable accommodation” is another such area.
  • During employment. The EEOC’s view is that during employment performance is the “best measure” of an employee’s ability to do the job and therefore questions about a medical condition or disability can only be asked if the employer both knows about the condition and reasonably believes it is related to a performance issue. The same principle applies to employees returning from medical leave and those who ask for sick leave or for a reasonable accomodation. The illustrations in the guidance about what can and cannot be asked are helpful in understanding the difference.
Medical questions during employment are the subject of ongoing disagreements among the courts and pose special problems for employers that require continuous training or competency tests. Periodic medical examinations as part of an employee health program are expressly permitted by 42 U.S.C. §12112(d)(4)(B), but when only one or a few employees are examined or questioned, disability related questions must be based on “business necessity.” 42 U.S.C. §12112(d)(4)(A). In Scott v. Napolitano, 717 F.Supp.2d 7071 (S.D.Cal. 2010) the district court in the Southern District of California concluded that very generic questions about medical matters asked of a Secret Service agent in connection with his certification for various activities would constitute an improper inquiry into a disability, thus triggering the “business necessity” requirement. Other courts have disagreed (Miller v. Whirlpool Corp., 807 F.Supp.2d 684) but the issue is not resolved. It is clear the EEOC will take a position much like that in Scott, which treats almost every medical inquiry aimed at an individual employee as requiring a “business necessity,” just as it has in cases involving the Genetic Information Nondiscrimination Act. Employers should exercise care to avoid violating the EEOC guidance regarding medical inquiries.
 
PROTECTING THE CONFIDENTIALITY OF DISABILITY INFORMATION
 
Each guidance also addresses the confidentiality of medical information. The EEOC acknowledges that when an employee requires a reasonable accommodation that makes his work different his supervisors and managers will need to know. 42 U.S.C. §14112(d)(3)(B). It also acknowledges that first aid and safety personnel may need this information. Id. However, the EEOC’s suggestion on how to deal with questions from other employees amounts to a proposal for a nod and a wink that says everything without saying anything. As noted below, the EEOC’s very lawyerly, not to say hypocritical, approach deserves a close look because it is unlikely to come naturally to most employers.
 
REASONABLE ACCOMODATIONS
 
The third part of each guidance discusses reasonable accommodations. Here the EEOC appears willing to impose a considerable expense on the employer, especially with respect to intellectual disabilities. One of the accommodations suggested for intellectual disabilities is “providing a job coach to provide intensive monitoring, training, assessment and support.” One of the accommodations suggested for employees with epilepsy is “providing someone to drive to meetings and other work related events.” Other proposed accommodations directly affect the working conditions of other employees. As a reasonable accommodation for an employee with cancer, for example, the EEOC proposes “modification of office temperature.” The EEOC recognizes that an accommodation is not reasonable if it involves “significant difficulty or expense” but does not appear to have a realistic view of how difficult and expensive its suggested accommodations might be, particularly if the employer cannot reveal the existence of the employee’s disability to other employees.
 
Most reasonable accommodations will look to other employees like some kind of special privilege. When fellow employees ask about the privilege, the EEOC forbids telling the employees that it is a reasonable accommodation because that would reveal that the employee receiving the accommodation is disabled. The EEOC suggests instead that the employer “focus on the importance of maintaining the privacy of all employees.” It also suggests that the employer can eliminate the problem by training employees on the requirements of the ADA and reasonable accommodations. This means, in essence, giving the other employees enough information so that they can figure out for themselves that the employee getting special treatment must be disabled. It is the kind of solution only a lawyer could love since it preserves an empty form while destroying the substance of the statutory protection. Regardless, following the EEOC’s suggestion is the safest way to deal with disability related questions by other employees.
 
SAFETY CONCERNS
 
The fourth section of each guidance discusses safety concerns. Here the EEOC reminds employers that the evaluation of safety risks must be objective and not based on myths or assumptions. In addition, a safety risk does not disqualify an employee if it can be mitigated by a reasonable accommodation. The EEOC also addresses the difficult question of how intrusive an employer can be where an employee’s condition might pose a threat to safety. Where an employee’s condition is controlled by medication but might be dangerous if not controlled, it will always be tempting to request periodic evidence of compliance. The EEOC’s position appears to be that that such requests are appropriate only if there is already a history of unsafe failures to follow a medical treatment plan. Unfortunately, of course, the first such incident may be the one in which someone is injured or killed, so waiting for a history of non-compliance to develop may itself be unreasonably dangerous. The meaning of “business necessity” remains subject to disagreement among the courts, and if an employee works in a position where even one failure to follow his medical plan might have serious consequences, the employer may want to conduct its own analysis of the threat posed by an uncontrolled medical condition rather than accept the apparent intent of the EEOC guidance.
 
HARRASSMENT, RETALIATION AND DEALING WITH COMPLAINTS
 
The last sections of each guidance deal with harassment, retaliation and how to file complaints. While they round out the guidance, they offer little that is new with respect to an employer’s obligations.
 
CONCLUSION
 
Each guidance includes valuable information about the EEOC’s view of the issues concerning the specific disability and disability discrimination in general. Taken in conjunction with the Strategic Enforcement Plan they are reminder that the EEOC is often less a neutral enforcer of the ADA than an advocate for an expansive view of the rights of the disabled under the ADA. Knowing what the EEOC expects can help avoid administrative actions and litigation; at the same time, accepting the EEOC’s position without analysis may cause an employer to incur costs or accept restrictions on its methods of doing business that are not in fact required by the ADA.