EEOC Informal Discussion Letter

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

October 5, 2004

Dear:

This responds to your July 30, 2004, letter to the Equal Employment Opportunity Commission (Commission) asking whether the Americans with Disabilities Act (ADA) permits an employer to require medical records from employees to justify their use of sick leave. Specifically, you state that a commercial airline recently began requesting pilots to provide all of their medical records to justify the use of sick leave even when, in some instances, the leave was taken more than one year prior to the employer's request. Pilots who refuse to provide their records may be disciplined or fired for insubordination.

The ADA strictly limits the circumstances under which an employer may make disability-related inquiries or require medical examinations of employees. Generally, an employer only may ask questions or request medical documentation 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 (Guidance), July 26, 2000. (This Guidance can be found on our website at www.eeoc.gov. ) An employer also is entitled to know whether an employee's absence or request for sick leave is due to legitimate medical reasons. An employer, therefore, may ask an employee to justify the use of sick leave by providing a doctor's note or other explanation for the use of sick leave, as long as it has a policy of doing so for all employees. Id. at Question 15. An employer, however, may not ask for documentation unrelated to the use of sick leave (such as information about an illness or condition other than that for which sick leave was requested) or for more information than is necessary to justify the sick leave request. We believe that requiring all of an employee's medical records to support a sick leave request will violate the ADA.

Employers also may make disability-related inquiries or request medical documentation when an employee who has been on leave for a medical condition seeks to return to work, if the employer has a reasonable belief that the employee's present ability to perform essential job functions will be impaired by a medical condition or that he or she will pose a direct threat because of a medical condition. Any inquiries or documentation, however, must be limited to what is needed to assess the employee's ability to work. A request for medical records made a year or more after sick leave has been taken and after a pilot has resumed flying cannot be justified under this standard. The ADA strictly prohibits an employer from using an employee's leave as a justification for making far-ranging disability-related inquiries or requiring unrelated medical documentation. Id. at Question 17.

You also ask whether an employer may require extensive medical documentation to justify sick leave usage from one pilot but not from other pilots and employees. We can think of three situations in which an employer may require more documentation from a particular employee who requests leave than from other employees who request leave. First, if, in response to a requirement that all employees justify their use of sick leave, an employer receives information which causes it to have a reasonable belief that a particular employee has a medical condition that may make him or her unable to perform essential job functions or will pose a direct threat, the employer may ask that employee for additional medical information. An employer only may request information about the particular medical condition at issue, not the employee's entire medical record.

Second, an employer may require an employee to provide documentation sufficient to substantiate that he or she has an ADA disability when the employee requests leave as a reasonable accommodation and the disability or need for leave is not known or obvious. See generally id. at Questions 5, 7, 10, and 13. An employee who requests leave as a reasonable accommodation is asking an employer to modify its normal leave policies (e.g., by providing more leave than the employee would be entitled to under the employer's regular policy) for reasons related to a disability. Under these circumstances, the employer has the right to know that the employee has a covered disability and why the employee requires leave as a reasonable accommodation.

Third, although not addressed in our Guidance, it would seem that an employer may request more documentation from employees who request longer periods of leave (even if the leave does not constitute a reasonable accommodation) or who are suspected of abusing sick leave than it requires from employees who request short or infrequent periods of leave. For example, an employer could allow employees who take one or two days of sick leave simply to submit a form on which they indicate that they were out of work due to illness, but might require a doctor's note or other documentation from employees who are out sick for a week or more or who have been observed taking frequent sick leave on Mondays or Fridays.

Finally, you ask whether an employer may terminate a pilot for insubordination for refusing to provide all of his or her medical records to justify the use of sick leave. Although the Commission has not specifically addressed this issue, an argument could be made that terminating or disciplining an employee for failing to respond to a request that he or she believes is unlawful constitutes retaliation for opposing activity made unlawful by the ADA, see 42 U.S.C. §12203(a); 29 C.F.R. §1630.12(a), or interference with an employee's enjoyment of rights under the ADA. See 42 U.S.C. §12203(b); 29 C.F.R. §1630.12(b).

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. If you have any questions, please contact me or Joyce Walker-Jones at Joyce.Walker-Jones@eeoc.gov.)

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division

This page was last modified on April 27, 2007.