Employers have an obligation to keep employees safe. They also have an obligation to meet all other legal requirements while doing so. This statement seems simple enough, but it can become complex in a hurry. For example, is an employer potentially violating the ADA by forcing employees to undergo medical screenings that may uncover safety issues (such as hearing screenings)?
What medical tests does OSHA require? What about administering discipline—can an employer discipline an employee with a disability the same way they would discipline other employees who have safety violations?
Edwin G. Foulke, Jr. and Tiffani H. Casey recently presented a BLR webinar that tackled these very questions. Read on for these answers and more from the webinar Q&A.
Q. Is it an ADA compliance risk to require potential employees to participate in audiograms?
A.Under OSHA, if you’re in a high-noise area you have to do a baseline audiogram. However, the baseline audiogram is not required immediately. Arguably, if you’re giving them before you make an offer of employment, that could be problematic because it’s clearly not required by OSHA at that time. While meeting OSHA requirements, look at the timing involved and do not use them as a pretext for denying employment.
Q. What other kinds of tests does OSHA require employers to administer to employees? How are these related to the ADA and reasonable accommodations?
A.OSHA doesn’t require tests related to reasonable accommodations. There are, however, other tests required by OSHA. A common example might be noise tests—checking employee hearing to ensure there is not hearing damage for those working in high noise areas. Another example is for employees exposed to hazardous chemicals or fumes.
There are permissible exposure levels, and when that level is exceeded, sometimes these situations require employees to wear respirators. In these cases, employees will need to do pulmonary function testing and they will need to ensure that the employee can effectively wear the respirator required to do the job. (In this example, someone with breathing difficulties may require a different respirator to be safe; this could be an example of a reasonable accommodation).
Q. How does an employer discipline employees with disabilities for safety violations and still be in ADA compliance?
A.Take the same approach as you would with any other discipline. Look at what the employee did, whether or not they violated an actual rule, and what the consequences are (under the company’s policies) for that particular violation. An important thing to remember is that you should look at why the person violated the rule. Was it misconduct? Did they not understand the rule? Or was their violation really a result of a disability? If the person truly engaged in misconduct, then the existence of a disability does not absolve them of disciplinary action. But when the violation was directly a result of the disability, there may be an accommodation that can prevent it from happening again.
Employers need to be consistent in the application of disciplinary measures and how you treat people. Whenever you have a disciplinary issue, ask these questions:
- What is the specific, written rule that was violated?
- Can you show that you instructed the employee on that rule?
- What did you do to others that violated the same rule? Is the discipline under consideration now the same as what was done in the past? Are you being consistent? (This will go a long way toward reducing discrimination claims).
These are the questions you should be able to answer and document—regardless of whether the person is disabled or not.
Q. When does an employer do the ADA analysis in the workers’ compensation arena?
A.If you’re asking at what point you would need to do an ADA analysis, you always need to be thinking about it. Start from the time anyone has an injury or illness, and remember that sometimes their condition is tied to a workplace injury and will be known, but other times it’s not known. In fact, it’s rare that you wouldn’t even consider that an injury or illness could be a disability—always keep that in mind. That said, there is a very practical time to do the analysis: when the employee needs to return to work.
At that time, be sure to get the doctor’s input and be sure that the doctor knows about the essential job duties and can outline restrictions related to these duties. At all times, employers need to consider whether health issues will compromise safety and whether accommodations are needed. These are really tough questions to analyze. Get help if you need outside counsel or assistance.
For more information on staying in ADA compliance while keeping employees safe, order the webinar recording of “ADA vs. Safety: Don’t Let Safety Policy Undermine Disability Accommodations.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Edwin Foulke of Fisher & Phillips, LLP has worked in the labor and employment area for over 30 years, specializing in occupational safety and health issues. Mr. Foulke is recognized as one of the nation’s leading authorities on occupational safety and health issues and one of the top speakers and writers in this area.
Tiffani H. Casey, Esq. is an associate in the Atlanta office of Fisher & Phillips, LLP. She advises employers in OSHA recordkeeping, hazard assessment and self-audits, corporate-wide safety compliance, maintaining effective safety training and safety management programs, disciplining unsafe employees, inspection preparedness, workplace violence prevention, and health and wellness initiatives.