EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Disability-Related Inquiries and Medical Eaminations
August 6, 2001
This responds to your June 14, 2001 facsimile requesting review of two post-offer job forms.
As you may know, the Americans with Disabilities Act of 1990 (ADA) contains strict rules governing when an employer may make disability-related inquiries or require medical examinations of applicants and employees. Under the ADA, an employer may not ask disability-related questions or require medical examinations before an applicant has been given a conditional job offer. A disability-related question is a question that is likely to elicit information about a disability. Questions about an applicant's ability to perform major life activities are prohibited at the pre-offer stage unless they are specifically about the ability to perform job functions. Major life activities are the basic activities that the average person can perform with little or no difficulty and include (but are not limited to) walking, standing, bending, stooping, reaching, lifting, and performing manual tasks. (See enclosed Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations at pages 1-4, 9-10.)
After a conditional job offer is made, an employer may ask disability-related questions and administer medical examinations if it does so for all entering employees in the same job category. A job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer. Where an employer seeks non-medical information at the post-offer stage, the employer must show that it could not have reasonably obtained and evaluated all non-medical information at the pre-offer stage. (See Guidance at pages 18-19.)
If an employer screens out an individual because of a disability, then the employer must demonstrate that the reason for the rejection is job related and consistent with business necessity. This means that the employer must show that the individual cannot perform the essential functions of the position in question with or without reasonable accommodation. Reasonable accommodation includes modifications or adjustments to the manner or circumstances under which a job customarily is performed. If the individual is screened out for safety reasons, the employer must demonstrate that the individual poses a "direct threat." This means that the individual poses a significant risk of substantial harm that cannot be reduced below the direct threat level through reasonable accommodation. (See Guidance at pages 2-3.)
Essential Job Functions Worksheet
Most of the questions on the "Essential Job Functions Worksheet" address an applicant's ability to perform major life activities. The form states that the questions pertain to job functions. If that is true, then such questions are not disability-related inquiries and must be asked at the pre-offer stage. (In such circumstances, the questions may be asked post-offer only if the employer could show that it could not reasonably obtain and evaluate the information pre-offer.) Note, however, that questions about major life activities may be asked pre-offer only if they pertain to the performance of job functions. Thus, for example, questions about the ability both to sit and to stand for an 8-12 hour shift may be asked pre-offer only if both are involved in the position at issue. Questions about the ability to perform major life activities that are not related to performance of the job are disability-related inquiries and must be asked post-offer.
It appears that most of the questions on the Worksheet pertain to job requirements. If an employer screens out an applicant because a disability prevents him or her from meeting a requirement, then it must show that the applicant cannot perform the essential functions of the position at issue with or without reasonable accommodation. In many cases, a reasonable accommodation will allow an individual to perform essential functions. For example, if operating a certain machine is an essential function, and employees customarily stand while operating the machine, then it may be a reasonable accommodation to permit an individual whose disability prevents her or him from standing to sit while operating the machine.
Verification of Conditional Job Offer and Essential Job Functions Form
Questions 1 through 7, which include questions about whether an individual has any medical restrictions, has any conditions requiring "special care" (such as diabetes or seizures), has had an operation or been seriously ill in the past three years, or is taking any prescription medications, are disability-related questions. Thus they may be asked only after a conditional offer of employment has been made. Questions 8 through 10 are not disability-related questions and may be asked post-offer only if an employer can show that it could not reasonably obtain and evaluate the information at the pre-offer stage. It is unlikely that an employer would be able to make such a showing here.
This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on
other statements or analyses that may have been presented in your facsimile should not be construed as agreement with those matters.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division
This page was last modified on April 27, 2007.
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