EEOC ISSUES FINAL ENFORCEMENT GUIDANCE ON PREEMPLOYMENT DISABILITY-RELATED QUESTIONS AND MEDICAL EXAMINATIONS UNDER THE AMERICANS WITH DISABILITIES ACT

WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today issued a final version of its "ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations." The guidance covers the Americans with Disabilities Act's restrictions on preemployment disability-related questions and medical examinations of applicants.

Under the law, employers cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer. This is because, in the past, applicants were often asked about their medical conditions in initial job interviews or on applications. This information was frequently used to exclude applicants with disabilities before their ability to perform a job was evaluated, even though many of them could have performed the job.

The final guidance is quite similar to the interim guidance issued by the EEOC on May 19, 1994, although there are several changes. Most notably, the final guidance clarifies that employers may ask certain questions about reasonable accommodation at the pre-offer stage. In particular, employers will be permitted to ask limited questions about reasonable accommodation if they reasonably believe that the applicant will need accommodation because of an obvious or voluntarily disclosed disability, or where the applicant has disclosed a need for accommodation. The final guidance permits employers to get relevant information in situations where they reasonably believe that accommodation will be needed, while giving applicants the chance to answer practical questions about how they can perform the job.

The final guidance makes clear that employers can continue to ask a wide variety of other questions to evaluate whether an applicant is qualified for a job. For example, employers may ask about an applicant's ability to perform specific job functions and about non-medical qualifications, such as education, work history and required certifications and licenses. Employers also may ask applicants to describe or demonstrate how they would perform job tasks. In addition, after a conditional offer is made, employers may ask disability-related questions and may require medical examinations of all entering employees in the job category.

In the Enforcement Guidance, the EEOC explains when a question is "disability-related," and when an examination is "medical." The EEOC also discusses a number of other issues, such as when an employment offer is a real offer, and employers' confidentiality obligations regarding medical information.

According to EEOC Chairman Gilbert Casellas, the guidance "demonstrates the EEOC's commitment to providing practical, useful standards that can be understood by all employers, especially smaller employers." He noted that the guidance is straight-forward, addresses issues most frequently raised by employers and EEOC investigators, and is written in an easy-to-understand question and answer format.

EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin; the Age Discrimination in Employment Act; the Equal Pay Act; the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in the private sector and state and local governments; prohibitions against discrimination affecting individuals with disabilities in the federal government; and sections of the Civil Rights Act of 1991.