From the Labor & Employment Practice.
As is generally the case, the Maryland Workers’ Compensation Act does not prohibit inquiries into a job applicant’s or employee´s medical or compensation claim history. However, under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), an employer is strictly proscribed in conducting disability-related inquiries and medical examinations of employees and applicants. The most significant recent development in this area involves inquiries and exams after the employment relationship commences. Under the ADA, disability-related inquiries and medical examinations of employees must be “job-related and consistent with business necessity.” On July 27, 2000, the Equal Employment Opportunity Commission (EEOC) issued a comprehensive Enforcement Guidance setting forth the agency´s position on the complex issues raised by this seemingly simple language. EEOC Enforcement Guidance, No. 915.002 (July 27, 2000).
A general analysis of the permissibility of medical examinations and inquiries proceeds in three stages. At the first stage, prior to an offer of employment, the ADA prohibits all disability-related inquiries and medical examinations. At the second stage, after a conditional offer of employment has been extended, the employer may make disability-related inquiries and conduct medical examinations, regardless of any relation to the essential functions or requirements of the job, provided that it does so for all entering employees in the same job category. At the final stage, after employment commences, disability-related inquiries and medical examinations may be conducted only if they are job-related and consistent with business necessity.
EEOC´s July 27, 2000 Enforcement Guidance sets forth the agency´s position on disability-related inquiries and medical examinations after the employment relationship commences. As an initial matter, however, it must be determined which inquiries are “disability-related” and which tests or procedures are “medical” in nature.
According to the EEOC, a “disability-related inquiry” is a question (or series of questions) that is likely to elicit information about a disability. Impermissible inquiries include the following:
- Asking an employee whether s/he has (or ever had) a disability or how s/he became disabled or inquiring about the nature or severity of an employee’s disability.
- Asking an employee to provide medical documentation regarding his/her disability.
- Asking an employee’s co-worker, family member, doctor, or another person about an employee’s disability.
- Asking about an employee’s genetic information.
- Asking about an employee’s prior workers’ compensation history.
- Asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications.
- Asking an employee a broad question about his/her impairments that is likely to elicit information about a disability (e.g., What impairments do you have?).
Questions that are not likely to elicit information about a disability are not disability-related inquiries and, therefore, are permissible under the ADA. Examples include:
- Asking generally about an employee’s well being (e.g., How are you?), asking an employee who looks tired or ill if s/he is feeling okay, asking an employee who is sneezing or coughing whether s/he has a cold or allergies, or asking how an employee is doing following the death of a loved one or the end of a marriage/relationship.
- Asking an employee about nondisability-related impairments (e.g., How did you break your leg?).
- Asking an employee whether s/he can perform job functions.
- Asking an employee whether s/he has been drinking.
- Asking an employee about his/her current illegal use of drugs.
- Asking a pregnant employee how she is feeling or when her baby is due.
- Asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency.
A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. According to the EEOC, the following factors should be considered to determine whether a test (or procedure) is a medical examination: (1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task ; (6) whether the test normally is given in a medical setting; and, (7) whether medical equipment is used. Medical examinations include the following:
- Vision tests conducted and analyzed by an ophthalmologist or optometrist.
- Blood, urine, and breath analyses to check for alcohol use.
- Blood, urine, saliva, and hair analyses to detect disease or genetic markers (e.g., for conditions such as sickle cell trait, breast cancer, or Huntington’s disease).
- Blood pressure screening and cholesterol testing.
- Nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpal tunnel syndrome).
- Range-of-motion tests that measure muscle strength and motor function.
- Pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out).
- Psychological tests that are designed to identify a mental disorder or impairment.
- Diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging (MRI).
There are a number of procedures and tests employers may require that generally are not considered medical examinations, including:
- Tests to determine the current illegal use of drugs.
- Physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee’s performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure).
- Tests that evaluate an employee’s ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions.
- Psychological tests that measure personality traits such as honesty, preferences, and habits.
- Polygraph examinations.
It may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination when there is a legitimate question as to the ability of an employee to perform the essential functions of his/her job or to question whether the employee can do the job without posing a direct threat due to a medical condition. Inquiries and examinations in response to a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity.
Furthermore, periodic medical examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity. For example, when an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition, an examination may be appropriate. Similarly, a medical exam or disability-related inquiry may be permissible when the employer receives information from a credible third party that an employee has a medical condition, or when the employer observes symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat.