Other Bulletins

January 2001
Employment Law Newsletter

U.S. Supreme Court Proceedings
by Mary Jo Kennedy

The Equal Employment Opportunity Commission has issued a new policy guidance on the legality under the Americans with Disabilities Act of disability-related inquiries and medical examinations of employees. In 1995, the EEOC issued a guidance on preemployment inquiries and medical examinations. The new guidance, issued this past July, focuses on the ADA’s limitations on inquiries and examinations during employment.

The guidance gives specific examples of questions and examinations that are legal and illegal. Although courts are not bound by the EEOC's interpretation, judges interpreting the ADA typically refer to EEOC policies. The latest guidance is online.

Before a job offer, employers are prohibited from asking any disability-related questions and from conducting any medical examinations. After a job applicant has been given a conditional job offer, but before she starts work, an employer may make disability-related inquiries and conduct medical examinations, regardless of whether related to the job or not, so long as all applicants are questioned or examined. However, once employment begins, disability-related inquiries and medical examinations must be job-related and consistent with business necessity.

Employers should educate managers first about what is a disability-related inquiry and what is a medical examination. Under the guidance, a question (or series of questions) likely to elicit information about a disability is a disability-related inquiry. For example, a question about whether an employee is currently taking any prescription drugs is generally considered a disability-related inquiry; a question about current illegal drug use is not.

The guidance defines a medical examination as a procedure or test that seeks information about one’s physical or mental impairments or health. Factors include whether the procedure or test is administered or interpreted by a health care professional, is invasive, involves the use of medical equipment, or is typically done in a medical setting. Generally, physical agility tests which measure the ability to perform simulated job tasks are not considered medical examinations.

Managers should learn when disability-related questions or medical examinations will be considered job-related and consistent with business necessity. Generally, employers are permitted to make a disability-related inquiry or require a medical examination when the employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform the essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat to himself or to others due to a medical condition.

In most instances, an employer’s need to make disability-related inquiries or conduct medical examinations will be triggered by evidence of current performance problems or observations that an employee poses a direct threat of harm. Sometimes, an employer may know about an employee’s medical condition from the employee herself or from another reliable source. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require medical examinations. As with all medical information, what an employer learns from disability-related inquiries or medical examinations must be treated confidentially.

Whether disability-related inquiries or medical examinations are permitted under the ADA must be assessed on a case-by-case basis. In making these determinations, employers should base their decisions on reliable, objective evidence. As with other personnel matters, employers should avoid making hasty decisions and should confer with their legal counsel for guidance.

Welcome Vanessa Smith!

BR&G welcomes its newest associate, Vanessa Smith, who will concentrate her practice in civil litigation, including the resolution of employment-related disputes. Find out more about her online, or call Vanessa at (413) 272-6213 to say hello.

Genetic Information: Another Protected Category in Massachusetts
by Jeffrey S. Morneau

Recent advances in genetic research have made it possible to identify the genetic makeup of an individual by laboratory tests. Genetic tests increase the ability to predict who will likely get certain medical conditions and the ability to treat these conditions. Some employers and insurance companies have been accused of using genetic information or genetic tests to avoid hiring or insuring individuals who are genetically predisposed to particular diseases or conditions.

Law: Massachusetts and 41 other states have enacted laws that address genetic privacy or genetic discrimination. The Massachusetts law, passed this year, addresses three areas in which the issue of genetic testing may arise: health care, employment, and insurance. The purpose of the law is to maintain the privacy of the results of genetic testing by prohibiting: (1) the disclosure of genetic test results without consent; (2) any requirement of genetic tests as a condition of employment or insurance; and (3) discrimination by insurers based on the use of genetic tests results.

At the Federal level, President Clinton signed in February an Executive Order which prohibits discrimination in the Executive Branch on the basis of protected genetic information. The Executive Order is intended to ensure that Executive Branch applicants and employees are judged on their current ability to perform the jobs they seek or hold, and not on the possibility that they might develop a disease or condition.

Employment Law Context: The new Massachusetts law makes it unlawful for any Massachusetts employer, employment agency, labor organization, or licensing agency to:

• refuse to hire, employ, represent, grant membership to, or license a person on the basis of that person’s genetic information;
• collect, solicit or require disclosure of genetic information from any person as a condition of employment, membership, or licensing;
• solicit submission to, require, or administer to any person a genetic test as a condition of employment, membership, or licensing;
• offer a person an inducement to undergo a genetic test or disclose genetic information;
• question a person about genetic information, genetic information concerning family members, or previous genetic testing;
• use the results of a genetic test or other genetic information to affect the terms, conditions, compensation or privileges of employment, representation, membership, or licensing;
• terminate or refuse to renew a person’s employment, representation, membership, or license on the basis of a genetic test or other genetic information; or
• otherwise seek, receive, or maintain genetic information for non-medical purposes.

Effect: Before this law, employers could require that individuals undergo genetic tests and disclose genetic information, after extending a conditional offer of employment. With the enactment of this law, employers are restricted further regarding the types of information they can obtain and the types of tests they can perform in making employment decisions.

Suggestions: Many employers might find it difficult to articulate lawful reasons to acquire genetic information regarding its employees. Genetic information is rarely job-related or necessary to determine whether an employee is qualified for a position. Employers should generally refrain from requiring genetic tests or inquiring about an employee’s genetic information when making employment decisions. If genetic information is part of an employee’s medical record, the employer should generally see that the information is not used for employment decisions. As with all medical information, employers must keep confidential any genetic information it has or obtains.

Mary Jo Kennedy and Jeffrey Morneau are members of our Employment Law Practice Group. Contact the group through mary Jo Kennedy, its coordinator, at (413) 272-6242 or mkennedy@bulkley.com.