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Labor and Employment Law

EEOC Offers Guidance On ADA Application to Specific Conditions: Cancer, Diabetes, Epilepsy, and Intellectual Disabilities

The ADA Amendments Act of 2008 took effect January 1, 2009, and broadened the definition of a disability that makes a person eligible for the protections of the ADA. Taking into account this new, broadened definition of disability, on May 15, 2013, the EEOC issued four "Question and Answer" documents about four common conditions that now clearly qualify as disabilities: cancer, diabetes, epilepsy, and intellectual disability.

The question and answer documents, one for each condition, provide straightforward answers to questions that employers might have about employing and accommodating individuals with one or more of these conditions. The documents use concrete examples to illustrate the answers provided. The issues addressed include:

  • permissible and impermissible inquiries by an employer when a person applies for a position,
  • when an employer may pose follow-up questions if a job applicant reveals that he/she has a disability or if an employee exhibits performance problems that may be related to a disability,
  • when an employer may require an employee to provide medical or other documentation demonstrating the ability to return to work,
  • keeping medical information confidential,
  • types of accommodations that may be required for persons with each of the conditions in question, and
  • safety issues.

Each document notes, for example, that inquiring whether a job applicant has had cancer, has diabetes, has epilepsy or uses prescription drugs, or has been in special education classes, would be impermissible. Employers can learn necessary information, however, by asking questions about an applicant's ability to perform the job in question, such as whether the applicant can lift a certain amount of weight, work rotating shifts, read, drive, or place items in numerical order.

Each of the four documents offers noteworthy information specific to the condition addressed. For example, the document regarding diabetes notes that certain other federal laws may prohibit hiring a person who requires insulin therapy, but that employers must take care to ensure that these other laws are truly applicable, and not merely assume, without adequate investigation, that a person with diabetes is ineligible for employment. The document addressing cancer as a disability explains that the protections of the ADA apply to individuals with a history of cancer as well as to those persons currently living with cancer. The epilepsy document emphasizes that as is true when accommodating individuals with any other disability, an employer can exclude a person from a job for safety reasons only when that person's doing the job poses a "direct threat" to himself or others. The harm in question must be "serious and likely to occur, not remote and speculative," and the employer must consider whether any reasonable accommodation, including temporary reassignment or leave, would reduce or eliminate the risk. Finally, the document that discusses intellectual disabilities explains that when it is apparent that an individual has an intellectual disability that impacts job performance, the employer may be obligated to initiate a discussion about reasonable accommodations even when the applicant or employee has not requested an accommodation. Employers should also take care, when requesting medical documentation regarding a person's intellectual disability, to request only information related to providing accommodation and to warn health care providers not to disclose genetic information in violation of the Genetic Information Nondiscrimination Act.

The guidance documents are available here.

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 Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.

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