We have a large workforce, and many people operate machinery, fork trucks, etc. Plus, many handle hazardous substances. We now think that some employees have medical conditions that may cause them to lose concentration, and we have some other employees who may be taking medications that might affect their ability to work safely. How do we approach these employees to see if there is a problem? How do we even know if they’re taking medications? And if we decide there is a problem, what do we do? — Cynthia, HR Specialist in Santa Cruz
Many employers struggle with how to balance their employees’ privacy and other rights under the federal Americans with Disabilities Act (ADA) with their organizations’ need for a safe and productive workplace. The ADA somewhat limits the freedom of safety-conscious employers to make disability-related inquiries to uncover risks that employees might pose. But with proper understanding of the legal framework, you should be able to fashion a program for your organization that will lawfully allow you to make the disability-related inquiries that are necessary to achieve workplace safety.
It is helpful to understand some of the ADA’s building-block concepts, including the “direct threat” concept, the notion of “individualized assessments,” and the circumstances under which employers are permitted, pre- and post-employment, to ask their employees disability-related questions.
Direct threat. Under the ADA, an employer may exclude a person from employment for safety reasons only if the person’s employment would pose a direct threat. “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” A “significant” risk means a high—not just a slightly increased—risk.
Individualized assessments. The direct threat determination must be based on an individualized assessment of the person’s present ability to safely perform the job functions, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.
For example, according to the U.S. Equal Employment Opportunity Commission (EEOC), an individual does not pose a direct threat when operating machinery simply because he or she takes medication that may diminish concentration or coordination in some people as a side effect.
Whether the person actually poses a direct threat must be determined on a case-by-case basis. Thus, if the person is experiencing side effects, the employer must determine the nature and severity of them, how the side effects affect the employee’s ability to safely operate machinery, and whether the individual has had safety problems in the past when operating the machinery while taking the medication in question. Likewise, with respect to a person with psychiatric disabilities, the employer would have to identify the specific behavior that would pose a direct threat.
If an individualized assessment establishes that a significant risk of substantial harm exists, the employer must determine whether there is a reasonable accommodation that will reduce or eliminate the risk.
Preemployment medical exams. Under the ADA, after a job offer is made but before employment commences, employers can require an applicant to undergo a medical exam and may condition the job offer on its results. However, the employer must also require everyone in that job category to submit to a medical exam. Further, an employer that denies employment based on the exam must be able to show both that the reason for exclusion was “job related and consistent with business necessity” and that no reasonable accommodation was available that would have permitted the person to safely perform the job’s functions.
Many employers with multiple safety-sensitive positions have instituted preemployment medical exams to ensure that those hired can safely perform the essential functions of their jobs.
Post-employment medical exams and inquiries. Once an applicant is hired, an employer can require a medical exam or ask employees about disabilities, but only if it can show that these requirements are job-related and consistent with business necessity. An employer can meet this requirement if it has a reasonable belief, based on objective evidence, that an employee’s ability to perform an essential function will be impaired by a medical condition or that an employee will pose a direct threat because of a medical condition.
For example, take a limousine driver with a known disability of manic depression who recently suffered a manic episode brought on by a round-the-clock driving assignment and resulting in reckless driving. The employer wants to assign the driver to another round-the-clock shift but is concerned that this may trigger another manic episode and bout of unsafe driving. According to the EEOC, under these circumstances, the employer may make disability-related inquiries of the employee or require a medical exam because it has a reasonable belief, based on objective evidence, that the employee will pose a direct threat to himself or others.
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Periodic medical exams for safety-sensitive positions. But what happens if you lack such concrete, objective evidence, and your safety concerns regarding particular individuals are based more on speculation or intuition? If your company has safety-sensitive positions, you would likely be able to justify periodic across-the-board inquiries as long as you apply them evenly to everyone in the safety-sensitive positions.
According to the EEOC, such periodic medical exams for public safety positions are permissible when they are “narrowly tailored to address specific job-related concerns and are shown to be consistent with business necessity.” Moreover, in certain industries (e.g., the railroad industry), such examinations are mandated by federal law or regulation. Thus, periodic medical exams to determine whether employees in safety-sensitive positions are safety risks are not only permissible, but, in some cases, may be required. (Indeed, it is a defense to a charge of discrimination under the ADA that “a challenged action is required or necessitated by another federal law or regulation.”) It goes without saying, then, that an employer should possess a thorough understanding of any federal safety regulations that affect the company’s operations.
Conclusion
To sum up, although the ADA presents some hurdles to obtaining information from employees about disabilities and medications that could pose dangers, there are at least three lawful ways for you to get this information:
- Institute an across-the-board, post-offer medical exam for all job applicants for safety-sensitive positions.
- If you have sufficient objective evidence suggesting that a current employee poses a direct threat, you may ask the individual disability-related questions or require a medical exam.
- If you have safety-sensitive positions, you may require periodic medical exams of all persons in those positions as long as the exams are narrowly tailored and consistent with business necessity.
In this way, a properly designed policy should allow you to achieve both a safe and an ADA-compliant workplace.
Lindsay E. Harris, Esq., is senior counsel at Speer Associates/Workplace Counsel, an employment law and employee relations consulting firm in San Francisco.