EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Disability-Related Inquiries and Medical Examinations of Employees
September 10, 2004
This is in response to your letter dated March 18, 2004, to the Equal Employment Opportunity Commission (EEOC or Commission) asking whether the Americans with Disabilities Act (ADA) would permit your client, an offshore drilling contractor, to adopt a policy requiring all offshore workers to undergo mandatory periodic medical examinations that would include hearing, heart, and blood pressure screening. The purpose of these examinations would be to prevent possible injuries and deaths should an offshore employee have a heart attack or stroke while operating heavy machinery. You write that because the company operates rigs in remote areas, inclement weather will delay the ability to evacuate employees in case of a medical emergency. We apologize for the delay in responding, as this office did not receive your original letter.
As you know, the ADA generally permits an employer to make disability-related inquiries and require medical examinations of employees only when it has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or, (2) an employee will pose a direct threat due to a medical condition. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), July 26, 2000, at Question 5. (This Guidance and other ADA guidances can be found on our website at www.eeoc.gov). In most instances, this standard is met when an employer knows about a particular employee's medical condition, has observed performance problems, and reasonably can attribute the problems to a medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his or her ability to perform essential job functions or will pose a direct threat. In these situations, it will be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination. Id.
The Commission also has stated that employers may require employees in positions affecting public safety (e.g., police officers, firefighters, and airline pilots) to undergo periodic medical examinations or to report the use of prescription medications that may affect their job performance. Id. at Questions 8 and 18 ; see also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, March 25, 1997, at n. 41. You believe that your client's offshore employees "fit within the spirit of [this] 'public safety' exception" in that they work in an environment in which their ability to perform their jobs without posing a direct threat to others affects the public safety of individuals who live and work on the rigs.
We believe that the situation you have described does not fit within existing Commission policy as set out in Questions 8 and 18 of the Guidance. Interpreting the ADA to allow periodic medical examinations in the manner you suggest would require the Commission to make new policy. This cannot be accomplished through an informal opinion letter. The Commission makes policy under the ADA in essentially two ways - by deliberating and ultimately voting to approve regulations, enforcement guidance, or other documents, or by voting to approve positions taken in litigation and amicus curiae briefs.
Even in the absence of Commission policy addressing your client's situation, however, there are other steps that your client can take to try to ensure the safety of its offshore employees. Obviously, if your client knows or has a reasonable belief that a particular offshore worker has a medical condition that may affect his or her ability to perform job functions or may pose a direct threat, it could require that employee to have a medical examination before allowing him to work on a rig.
In addition, after making a conditional job offer, your client can require all offshore workers to answer a medical history questionnaire and undergo a medical examination. Your client also may ask specific individuals additional questions or require them to have a follow-up medical examination if the information sought is medically related to previously obtained medical information. For example, if your client learns that an entering employee has a history of heart problems, it could ask follow-up questions of that person or request additional documentation to assess his present ability to safely perform the duties of the job and could withdraw the job offer if the person cannot safely do the job with or without reasonable accommodation.
Finally, your client may offer offshore employees voluntary medical examinations to detect potential medical conditions that could affect their ability to safely work on an offshore rig. In order to be considered "voluntary," the examination may not be required and employees may not be penalized for refusing to take it. Id. at Question 22.
I hope this information is helpful to you. This letter is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.
Senior Attorney Advisor
ADA Policy Division
This page was last modified on April 27, 2007.
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