Many employers don’t know they may have Americans with Disabilities Act obligations when they hire temps or other contingent workers through a staffing agency. New Equal Employment Opportunity Commission guidelines hold employers and staffing agencies—including temporary employment agencies, contract firms and employee leasing companies—jointly responsible for ADA compliance.
Employment Offers And Disability-Related Questions
The staffing firm or employer-client may ask disability-related questions or require medical examinations only after a job offer is made and only if this is done with all job applicants. The EEOC says that an offer of employment occurs when a contingent worker is assigned to a specific client.The staffing firm or client may withdraw a job offer if answers to disability-related questions or exam results indicate the applicant can’t perform the essential job functions even with a reasonable accommodation or if doing so could directly threaten other workers’ safety. You may also withdraw an offer if a job is available only on short notice or for a brief duration and there isn’t time for the temporary worker to provide required medical information.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Accommodating Job Applicants
When no particular client has been identified as a prospective employer, only the staffing agency has to provide a reasonable accommodation for the application process. But you can still be liable if you know or have reason to know that the staffing firm isn’t meeting its reasonable accommodation obligations to a job applicant.If you direct an applicant to apply for a job through a staffing agency, you and the agency will be obligated to provide a reasonable accommodation for a disabled applicant.
On-The-Job Accommodations
If you and the staffing agency qualify as joint employers, you both are responsible for providing a reasonable accommodation needed to perform the job. You and the agency are typically considered joint employers if you control the job duties and working conditions while the agency handles hiring and firing, wages, tax withholding and workers’ comp. The guidance explains that you can claim undue hardship if a reasonable accommodation would be too costly for you to bear on your own and the staffing agency refuses to contribute. In this situation, the EEOC advises that you inform the staffing firm of its ADA obligations and not use the firm’s services until it agrees to abide by its legal responsibilities.
Allocating Accommodation Responsibilities
To avoid disputes over the responsibility for accommodating a disabled contingent worker, the EEOC suggests that your contracts with staffing agencies specify who provides accommodations and how accommodation costs are shared. You and the staffing agency can allocate accommodation responsibilities as you choose, although the contract terms won’t alter your respective ADA obligations.
Qualification Standards And Employment Tests
The ADA prohibits both you and the staffing firm from using discriminatory job standards or employment tests. And note that you can be liable for a staffing firm’s illegal standards or tests if you knew about the practice and didn’t take corrective action.