Permissible Disability-Related Inquiries, Medical Exams, and Certifications: Key Considerations

by Betsy Johnson, Ogletree Deakins, Nash, Smoak & Stewart, P.C.

In evaluating requests for a reasonable accommodation under the ADA, employers have limited rights to access employee health information, to make disability-related inquiries, and require medical examinations of employees. See 42 U.S.C. § 12112(d); 29 C.F.R. §§ 1630.13 and 1630.14. This practice note summarizes employers’ limited rights in this area.

For more detail on disability inquiries and medical exams, see Disability-related and Genetic Information in Job Applications and Pre-employment Medical Examinations: Best Practices, Americans with Disabilities Act: Guidance for Employers, and Interview Questions Checklist: Permissible and Impermissible Inquiries to Job Applicants.

Under the ADA, employers may ask disability-related questions and mandate medical examinations only if the inquires and medical exams are “job-related and consistent with business necessity.” See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees (2000).

“Disability-related inquiries” are questions likely to elicit information about a disability, such as: (i) whether employees have or ever had a disability; (ii) what kinds of prescription medications they are taking; and (iii) the results of any medical or genetic tests they have had. Disability-related inquires also include asking co-workers, family members, or doctors about an employee’s disability. Employers may ask employees about their general well-being, whether they can perform job functions; and about their current illegal use of drugs without running afoul of the EEOC’s Guidance.

A “medical examination” is a test generally administered by a health care professional or in a medical setting that seeks information about a person’s physical or mental impairments or health. Medical examinations include vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.

Medical inquiries and examinations qualify as “job related and consistent with business necessity” when employers reasonably believe based on objective evidence that employees will be unable to perform the essential functions their job because of a medical condition or employees will pose a direct threat to themselves or others due to a medical condition. See, e.g., Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir. 2013) (upholding an employer's right to require a medical examination from an employee returning from leave after he made threatening comments in a meeting with his supervisor).

Employers also may obtain medical information about an employee when an employee requests a reasonable accommodation or where an employee’s disability or need for accommodation is not obvious. In addition to permitted medical inquiries and medical examinations, under the ADA, employers may obtain medical certification of the need for leave or extensions of leaves.

Where an employer has explained what type of documentation it requires from the employee, and the employee fails to provide the documentation or provides insufficient documentation, the employer may require the employee to see a health care professional of the employer’s choice. Before the employer incurs the additional expense of a separate examination, you should advise the employer to consider asking the employee’s health care provider for additional information.