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.
Rehabilitation Act: Periodic Testing
January 5, 2007
This is in response to your December 13, 2006, e.mail asking whether Section 501 of the Rehabilitation Act would permit your agency to do periodic testing of an employee who works in a dive, aviation, or maritime position to determine whether the employee is using a mitigating measure (e.g., prescribed medication), where he or she was deemed medically qualified for hire provided the mitigating measure is used.
As you know, Section 501 of the Rehabilitation Act generally permits an employer to make disability.related inquiries and require medical examinations of employees only when they are job-related and consistent with business necessity. Generally, this means that an employer 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 document, 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. Id. Any inquiries or examinations must not exceed the scope of the specific medical condition and its effect on the employee’s ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat.
Based on the information you have provided us about the jobs in question, the situation you have described would not appear to satisfy this general standard or to fit within any of the specific situations in which the Commission has said that disability-related inquiries or medical examinations of employees would be permitted. The fact that an employee needs to use a mitigating measure in order to perform a job does not, by itself, constitute evidence that the employee may be unable to perform the job or may pose a direct threat due to a medical condition. If this were the case, an employer would seemingly be able to monitor medication usage of employees in many kinds of jobs.
The Commission has endorsed periodic medical monitoring of employees in two specific situations. First, we have said that employers may require employees in positions affecting public safety (e.g., police officers, firefighters, armed private security guards, 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. The positions you have described do not appear to be “positions affecting public safety” as described by the Commission.
Second, in question 19 of the guidance, we have stated that periodic alcohol testing (which is a medical examination) of employees should be based on “the safety risks associated with the position the employee holds, the consequences of the employee’s inability or impaired ability to perform his/her job functions, and how recently the event(s) occurred that cause the employer to believe that the employee will pose a direct threat (e.g., how long the individual has been an employee, when s/he completed rehabilitation, whether s/he previously has relapsed). Further, the duration and frequency of the testing must be designed to address particular safety concerns and should not be used to harass, intimidate, or retaliate against the employee because of his/her disability. Where the employee repeatedly has tested negative for alcohol, continued testing may not be job.related and consistent with business necessity because the employer no longer may have a reasonable belief that the employee will pose a direct threat.”
Example A to question 19 provides an illustration of how this principle would apply:
Three months after being hired, a city bus driver informed his supervisor of his alcoholism and requested leave to enroll in a rehabilitation program. The driver explained that he had not had a drink in more than 10 years until he recently started having a couple of beers before bed to deal with the recent separation from his wife. After four months of rehabilitation and counseling, the driver was cleared to return to work. Given the safety risks associated with the bus driver’s position, his short period of employment, and recent completion of rehabilitation, the city can show that it would be job.related and consistent with business necessity to subject the driver to frequent periodic alcohol tests following his return to work.
Question 19 presents the most useful analogy to your situation. However, it would appear that, under our guidance, more evidence may be needed to justify a periodic medical examination to determine continued use of a mitigating measure than the fact that the employee was deemed qualified provided he uses the measure. For example, a recent or chronic history of non.adherence to the measure might justify periodic testing for a reasonable period of time.
I hope this information is helpful to you. This is an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission or a comment on the application to any particular case of the principles discussed. Further, our silence on other statements or analyses that may have been presented in your letter should not be construed as agreement with those matters.
Christopher J. Kuczynski
Assistant Legal Counsel
This page was last modified on May 2, 2007.
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