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
- 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.