Preemployment screening can help management avoid hiring problem employees. However, employers must carefully walk through the screening process, or they may find themselves in violation of the discrimination laws set by the Americans with Disabilities Act (ADA). Security Management, with the assistance of legal experts, has reviewed the docket of 131 recent ADA cases at the Equal Employment Opportunity Commission (EEOC) to see whether any instructive trends are evident.
The docket consists of ADA cases currently under litigation or recently decided. Most of the cases reviewed concerned preemployment issues, rather than disagreements that arose during employment. The ADA divides employment into three time periods: before the job offer, after the job offer, and employment. During the first stage, an employer is not allowed to ask questions that are likely to cause the applicant to reveal a disability.
At this stage, the employer cannot require medical tests and can only ask whether an applicant can perform essential job-related functions, with or without reasonable accommodation. After an offer has been made but before the applicant has started working, employers have the freedom to ask any type of medical question or require any medical test, but employers are limited in what they can do with this information.
At this stage, the job offer is considered conditional; however, a conditional offer can be withdrawn only under two conditions: if the test reveals that the applicant cannot perform the essential functions of the job (with or without reasonable accommodation) or if placing the candidate in the job-given the applicant’s medical condition-would pose a direct threat to the health or safety of the applicant or other employees. As an example of the second situation, an employee who suffers intermittent, unpredictable blackouts could not drive a forklift without posing a direct safety threat in the workplace.
For current employees, employers can only require medical tests or ask medical questions when they are job related and necessary for business reasons. The only exception is drug testing. The ADA does not protect current users of illegal drugs, nor does it consider drug testing a medical exam. Thus, employers have the right to test their employees or applicants for unlawful drugs at any time. Some state laws do, however, place restrictions on the circumstances under which an employer can test for drugs.
For example, some states preclude random drug testing and limit testing to situations involving an accident or reasonable suspicion. All ADA claims must first be filed through the EEOC. Claimants can also pursue a case on their own by filing a lawsuit rather than waiting for the EEOC to act. Not every claim filed with the EEOC is deemed by the commission to have merit. The EEOC received 108,939 claims in 1998, but approximately one-third of these cases were either withdrawn, pursued independently, or settled without the commission’s help.
When the remaining two-thirds were investigated, only 4,000 were deemed to have merit. According to a 1997 policy guide published by the EEOC, medical tests must be job-related or consistent with business necessity and as nondiscriminatory as possible. The company should reevaluate testing that is broad enough to disqualify large groups of people. Companies that rely on doctors to make medical judgments about whether an applicant is physically able to perform certain tasks are still liable for the judgments.
Even if the mistake is made by the physician hired to carry out the medical tests, the company can be held responsible for any discrimination that occurs. The ADA not only protects people who are actually disabled, but also those who are perceived as disabled. If an employer wrongly believes that an applicant is disabled-an employer mistakenly believes an applicant has AIDS because of the applicant’s appearance, for example-and refuses to hire the applicant because of that perception, then the employer has violated the ADA.
If the applicant sues, the employer can be held liable for monetary damages and may be ordered to give the applicant the job. According to ADA requirements, an employer “shall not… make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. ” These rules apply only to the questions asked before an offer of employment is extended. As with medical tests, a prospective employee need not be disabled to successfully sue for discrimination due to an improper medical question.
Asking improper medical questions can also affect an employer’s right to fire its employees if they lie during the application process. Preemployment genetic testing is not widespread. It is, however, already controversial. Though governed by the same rules applied to medical tests, genetic testing is considered more intrusive than standard medical tests because it seeks to predict future illness rather than measure an applicant’s current job qualifications. With all these laws and restrictions, what can an employer do to make adjustments a little easier?
Answering that question is tough because reasonable accommodation is determined on a case-by-case basis. It may include physical changes to facilities; changes to workplace policies, procedures; or practices; time off from work, or a modified work schedule. An employee on medication for a psychiatric disability may experience grogginess or lack of concentration in the morning. Rescheduling work hours with a later start time may work to the advantage of both the employer and the employee. An employer doesn’t have the responsibility to make sure the employee takes medication for his disability.
And, reasonable accommodation doesn’t require an employer to lower standards or remove essential functions of a job. But the employer may be required to reassign an employee to a different position. And, as a reasonable accommodation, an employer may even be required to provide a temporary job coach to assist in the training of a qualified individual with a disability. Employers may not tell employees why the company is providing a reasonable accommodation for an individual. They may say the company is acting for legitimate business reasons or in compliance with the law.
To be on the safe side, the EEOC suggests companies to include an explanation of the ADA in an employee handbook or during employee orientation or training. The mental impairment provisions of the ADA and the guidance issued by the EEOC are complex. But regardless of a lack of clarity, the law and the guidelines that now accompany it impose significant obligations on employers and supervisors and on the controllers and other financial professionals who maintain overall financial responsibility for a company.
