Questions and Answers: Enforcement Guidance: Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms

Introduction

Why did the EEOC issue this Guidance?

• Contingent workers placed by staffing firms, including for example, temporary, contract, and leased workers, represent a growing segment of the labor force. Employment through staffing firms is particularly critical for individuals with disabilities who are seeking to move into the workforce.
• In 1997, the Commission issued an enforcement guidance titled, "Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms" ("Contingent Workers Guidance") that dealt generally with the liability of staffing firms and their clients for violations of federal employment discrimination laws.
• This guidance addresses unanswered questions in the prior guidance and explains the responsibilities of staffing firms and their clients in complying with requirements unique to the ADA, including for example, reasonable accommodation and rules concerning disability-related questions and medical examinations.

What ADA issues does this Guidance address?

• This guidance focuses primarily on the allocation of responsibilities between employers and staffing firms.
• The most important issues covered in the guidance are:
  • the circumstances in which staffing firms and their clients may ask disability-related questions or require medical examinations of applicants and employees (Questions 1-5);
  • the extent to which a staffing firm and its clients are required to provide reasonable accommodations for staffing firm workers with disabilities (Questions 6-10); and
  • a staffing firm's and client's liability for using qualification standards and preemployment tests that discriminate on the basis of disability (Questions 11 & 12).
• This guidance does not include a detailed discussion of when an entity is an employer or when a staffing firm and its client are joint employers. These concepts are fully discussed in the Contingent Workers Guidance.
• For more information about the issues discussed in the Guidance, please consult the question numbers referenced throughout this document.

To whom does this Guidance apply?

• The Guidance applies to private and to state and local government employers with fifteen or more employees. Federal sector employers also are covered by the Guidance, as the result of the 1992 amendments to the Rehabilitation Act.
• The ADA's requirements generally apply to "qualified individuals with disabilities." However, the discussion of disability-related inquiries and medical examinations in the Guidance applies to all applicants and employees, whether they have disabilities or not.

Disability-Related Inquiries and Medical Examinations

The ADA sets forth rules about when covered entities may ask disability-related questions or require medical examinations of applicants and employees. This guidance deals with these requirements in the unique setting of contingent work arrangements.

What constitutes an offer of employment to a staffing firm worker? (Questions 1 and 2)

• Generally, the offer occurs when the worker receives an assignment with a specific client. A staffing firm's placement of someone on its roster for future consideration does not constitute an offer of employment because typically there is no employment relationship at that point.

What types of disability-related questions and medical examinations are permitted after an offer of employment has been made to a staffing firm worker? (Questions 3, 5)

• After an offer has been made, a staffing firm or its client may ask any disability-related questions or require any medical examinations that it chooses, as long as it does so for all applicants for the same job. However, if the staffing firm or client wants to withdraw the offer from an applicant with a disability based on the answers to these questions or the results of medical examinations, it has to show that the applicant either: (1) cannot perform the essential functions of the job, even with a reasonable accommodation; or (2) would pose a direct threat (i.e., a significant risk of substantial harm).
• During the work assignment, a staffing firm or its client generally may ask a staffing firm worker disability-related questions or require a medical examination only where it has a reasonable belief that a medical condition will make the worker unable to do the job or will result in a direct threat.

What if a job becomes available on very short notice and there isn't time for a staffing firm worker to provide needed medical information? (Question 4)

• The offer may be withdrawn. However, a staffing firm should consider telling an applicant what medical information will be needed before a particular assignment is made. That way, the applicant can obtain the needed information and provide it quickly if a particular assignment becomes available on short notice.

Reasonable Accommodation and Undue Hardship

Which entity - the staffing firm or its client - has to provide a reasonable accommodation for the application process? (Question 6)

• Typically, only the staffing firm will have to provide reasonable accommodations for the application process, since no particular client has been identified as a prospective employer.
• However, when a client sends an applicant to apply for work with it through the staffing firm, both the staffing firm and the client must provide reasonable accommodation for the application process.
• Even though a client does not usually have an obligation to provide a reasonable accommodation in the application process, it might still violate the ADA if it is a joint employer of staffing firm workers, and it knows or has reason to know that the staffing firm is not providing reasonable accommodations for the application process but fails to take corrective action within its control.

Where a staffing firm and its client are joint employers of a staffing firm worker with a disability, which one has to provide reasonable accommodations needed on the job? (Question 7)

• Both the staffing firm and the client are obligated to provide a reasonable accommodation needed on the job, absent undue hardship, if they have notice of the need for it. The staffing firm and client may wish to set out in their contracts how reasonable accommodations will be provided and who will pay for them.

What happens if a job becomes available on short notice and there is no time for the staffing firm or client to provide a reasonable accommodation? (Question 8)

• Some temporary work assignments become available on short notice and last only a brief period of time, during which certain tasks have to be completed. In these circumstances, the staffing firm or its client could establish undue hardship by showing that the job became available on short notice and the accommodation could not be provided quickly enough to enable the staffing firm worker to timely begin or complete a temporary assignment.

What does the Guidance say about how staffing firms and their clients should determine cost-related undue hardship? (Question 9)

• Where the resources of the staffing firm and its client together are insufficient to provide an accommodation without significant expense, both have an undue hardship defense.
• A staffing firm or client whose resources are insufficient to provide the accommodation also may have an undue hardship defense if it made good faith, but unsuccessful, efforts to have the other entity contribute to the accommodation's cost.
• Where a staffing firm and its client are both obligated to provide a reasonable accommodation, the entity that refuses to contribute to the accommodation's cost may be liable for failing to provide the accommodation. If the other entity is able to provide the accommodation without undue hardship, it must do so.

What should a staffing firm or client do if providing the accommodation is solely within the control of the other entity, e.g., where the accommodation requires changes to the client's workplace? (Question 10)

• Where a staffing firm and its client are joint employers of a staffing firm worker with a disability, one entity may claim undue hardship where providing the accommodation is solely within the other entity's control if it made good faith, but unsuccessful, efforts to obtain the other's cooperation in providing the reasonable accommodation.

Qualification Standards, Employment Tests, and Other Selection Criteria

What does the Guidance say about the liability of staffing firms and their clients for the use of discriminatory job standards? (Question 11 )

• Job standards that staffing firms and their clients use that exclude an individual with a disability from employment have to be job-related and consistent with business necessity.
• If the qualification standard is not job-related and consistent with business necessity, the staffing firm is liable for violating the ADA if it is applying either its own standard or its client's standard. The client is liable if it requested the staffing firm to use the standard or if it used the standard directly.
• A staffing firm also may be liable if it knows or has reason to know that a client is using a discriminatory qualification standard and fails to take corrective action within its control. The same is true of a client that knows or has reason to know that a staffing firm is using a discriminatory qualification standard.
• If the qualification standard is job related and consistent with business necessity, the staffing firm and/or the client must consider whether there is a reasonable accommodation that will enable a staffing firm worker with a disability to meet the standard.

How does the ADA apply to the administration of pre-employment tests in the contingent work setting? (Question 12)

• A staffing firm and a client must make reasonable accommodations so that individuals with disabilities can take any tests they administer directly or at the other entity's direction.
• Also, a staffing firm and its client may not use tests results to screen out individuals from employment on the basis of disability, unless use of the test results is job-related and consistent with business necessity.
• Finally, if the staffing firm or its client knows that the other entity is discriminating with respect to pre-employment testing, then it must take corrective action within its control in order to avoid liability under the ADA.