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EEOC guidance document, OFCCP compliance reviews, and legislative initiatives.

EEOC ISSUES REVISED GUIDANCE ON PREEMPLOYMENT QUESTIONS UNDER THE ADA

On October 11, 1995, the Equal Employment Opportunity Commission (EEOC) issued its revised EEOC Guidance on Preemployment Inquiries under the Americans with Disabilities Act (ADA) (196 Daily Lab. Rep. (BNA) (October 11, 1995)). This EEOC guidance replaces an earlier document that was issued in May of 1994. The new EEOC guidance is presented in a question-and-answer format that is intended to be easier to use than the 1994 guidance.

The new EEOC guidance still defines prohibited "disability-related questions" broadly - as questions "likely to elicit" information regarding disability. This broad definition leads to some fine linguistic distinctions. For example, under the new EEOC guidance, employers may ask applicants whether they are able to perform job functions "with or without reasonable accommodation" (1995 Guidance at E-4). The EEOC does not view this question as likely to elicit information regarding disabilities because an affirmative response does not reveal whether the individual needs a reasonable accommodation. An employer may not, however, ask an applicant to check a box indicating whether he or she can perform the job functions with or without a reasonable accommodation (1995 guidance at E-10 n.11). Such a question is deemed likely to elicit disability-related information.

Reasonable Accommodation

As a general rule, employers are not allowed to ask applicants whether they will need reasonable accommodations to perform their jobs. There is, however, an exception to this general rule in cases in which the employer "could reasonably believe" that the individual will need an accommodation. The 1995 EEOC guidance gives three examples of situations in which an employer "could reasonably believe" that an accommodation would be needed: (1) the applicant's disability is obvious (e.g., the applicant uses a wheelchair); (2) the applicant has voluntarily revealed the existence of a hidden disability; and (3) the applicant has voluntarily stated the need for a reasonable accommodation. In each case, the employer is permitted to ask questions only about the necessary accommodation and not about the underlying disability (1995 guidance at E-4 to E-5).

Attendance and Injuries

The 1995 EEOC guidance makes clear that employers may state attendance requirements and ask applicants whether they will be able to meet those requirements. An employer may also ask about an applicant's attendance record in his or her prior employment but may not ask specifically about the use of sick leave. At the preemployment stage, an employer also may not ask about an applicant's workers' compensation history or prior job-related injuries, as such questions are considered likely to elicit information regarding disability (1995 guidance at E-5 to E-6).

Drug and Alcohol Use

Employers may ask about alcohol consumption, provided the questions are not phrased in a manner likely to elicit information about alcoholism, which is a protected disability. Similarly, employers may ask about prior illegal drug use so long as the questions do not go to prior addiction. (For example, an employer may ask whether the applicant has ever used illegal drugs, but may not ask how often the applicant used such drugs.) Questions about lawful drug use are not permitted at this stage unless an applicant has tested positive on a preemployment test for illegal drug use. In such a situation, the employer may ask the applicant whether he or she is lawfully taking any drugs that may have caused the positive result (1995 guidance at E-6).

Affirmative Action

In certain circumstances, employers may ask applicants to voluntarily self-identify as disabled. This may be done if an employer is required by federal, state, or local law to provide affirmative action programs for disabled individuals. Employers using voluntary affirmative action plans may also ask applicants to self-identify, provided that the employers use the information to benefit individuals with disabilities. Employers requesting self-identification must follow certain procedures outlined in the 1995 EEOC guidance. First, the employer must state clearly, either in writing or orally, that the information requested is used only for affirmative action purposes. Second, the employer must state clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide the information will not have an adverse effect on the application, and that the information will be used only if it is consistent with the ADA. In order to ensure the confidentiality of such information, the 1995 EEOC guidance requires that the information be kept on a separate form and retained apart from the employment application (1995 guidance at E-6 to E-7).

Medical Examinations

The 1995 EEOC guidance also addresses preemployment medical examinations under the ADA. The document defines a medical examination as "a procedure or test that seeks information about an individual's physical or mental impairments or health." As a general rule, medical examinations are not permitted at the pre-offer stage (1995 guidance at E-7).

As the 1995 guidance acknowledges, however, discerning whether or not a test is a medical examination can be difficult. The guidance offers the following list of factors for use in determining whether a procedure is a medical exam for the purposes of the ADA:

* Is it administered by a health care professional or someone trained by a health care professional?

* Are the results interpreted by a health care professional or someone trained by a health care professional?

* Is it designed to reveal an impairment of physical or mental health?

* Is the employer trying to determine the applicant's physical or mental health or impairments?

* Is it invasive (for example, does it require the drawing of blood, urine, or breath)?

* Does it measure an applicant's performance of a task, or does it measure the applicant's physiological responses to performing the task?

* Is it normally given in a medical setting (for example, a health care professional's office)?

* Is medical equipment used?

(1995 guidance at E-7).

Under the 1995 guidance, physical agility and physical fitness tests are allowed as nonmedical examinations. Employers may also request that applicants provide medical certification that they can perform such tests safely and assume liability should they injure themselves performing such tests. Employers may not, however, measure the body's physiological response to such tests, because that would convert the tests into impermissible medical examinations (1995 guidance at E-7 to E-8).

Although employers may be prohibited by other laws from administering polygraph tests to applicants, the ADA does not consider such tests to be medical examinations (although the use of prohibited disability-related questions during such an examination would violate the ADA). Likewise, psychological tests may be used in the application process provided that they are used to measure personality traits such as honesty and not to identify mental disorders or impairments. Drug tests for the use of illegal drugs are also permitted under the ADA. Alcohol tests, however, are prohibited as medical examinations (1995 guidance at E-8).

Post-Offer Questions

Once a "real" job offer has been made, the employer may ask disability-related questions and require medical examinations. The offer of employment may be made conditional on the results of such inquiries. If disability-related questions or medical examinations are used after a conditional offer of employment, the employer must ask the same questions or require the same examination of all new employees in the given job category (1995 guidance at E-8). Individualized follow-up questions or examinations are permitted if they are related to information obtained through standardized medical questions or exams (1995 guidance at E-8 to E-9).

Additionally, employers may ask employees about the need for reasonable accommodations at the post-offer stage. If a new employee indicates the need for an accommodation, the employer may request reasonable documentation of the disability and the need for accommodation (1995 guidance at E-9).

A real job offer is not limited to current vacancies. Employers are allowed to create employee pools, but they must move individuals out of the pool and into vacancies in compliance with the ADA. The EEOC warns that it will closely scrutinize the decision-making process when an individual alleges that he or she has been the subject of disability-based discrimination in being placed into an actual vacancy (1995 guidance at E-8).

Finally, the 1995 guidance emphasizes that the employer must ensure that all medical information is kept confidential and apart from the employee's personnel file. The obligation to maintain confidentiality continues even for unsuccessful applicants and terminated employees. There are limited situations in which medical information may be disclosed. For example, supervisors may be told about necessary accommodations and restrictions; first-aid and safety personnel may be told about the disability if emergency medical treatment may be needed; government compliance investigators must be given requested information; and insurers may be given information for insurance purposes. Medical information may also be given to decision makers, on a need-to-know basis, during the hiring process. Accordingly, when many individuals are involved in evaluating an applicant, some of the individuals may not be privy to information regarding disability or reasonable accommodation. Employers are not required to excise all medical information from pre-ADA personnel files (1995 guidance at E-9).

Although they allow a bit more flexibility regarding reasonable accommodation inquiries at the preemployment stage, the new guidelines continue to present employers with a linguistic minefield where the mere turn of a phrase could result in liability under the ADA.

OFCCP AUTHORITY TO CONDUCT COMPLIANCE REVIEWS UNDER THE REHABILITATION ACT OF 1973 UNDERMINED

A recent decision by an administrative law judge has called into question the Office of Federal Contract Compliance Program's (OFCCP's) authority to conduct compliance reviews under the Rehabilitation Act of 1973. For over two decades, the OFCCP has conducted compliance reviews of federal contractors under Section 503 of the Rehabilitation Act without any challenge to its authority to do so. In OFCCP v. American Airlines, 66 Empl. Prac. Dec. (CCH) [para]43,682 (Dept. Labor 1995), American Airlines argued for the first time that OFCCP was not authorized by either the Rehabilitation Act or its implementing regulations to take enforcement action under the statute in the absence of an individual complaint of discrimination. Administrative Law Judge Alfred Lindeman agreed as a matter of law.

OFCCP is expressly authorized to investigate individual complaints under the Rehabilitation Act. Additionally, since passage of the statute, OFCCP has conducted compliance reviews at its own initiative. Such reviews involve an investigation of a contractor's compliance with the Rehabilitation Act's nondiscrimination mandate, and, where noncompliance is found, initiation of an enforcement action. In the case of American Airlines, the compliance review resulted in the OFCCP alleging that 96 individuals had been discriminated against in violation of the Rehabilitation Act and seeking to recover almost $40 million on their behalf. None of the individuals had filed complaints against the company under the Act.

Even if an individual has filed a complaint under the Rehabilitation Act, the OFCCP is not authorized to use the filing of the complaint as a basis to conduct a full compliance review. OFCCP v. City Pub. Serv. of San Antonio, 66 Empl. Prac. Dec. (CCH) [para]43,683 (Dept. Labor 1995). The agency may investigate beyond the scope of the individual complaint only to the extent that the investigation is reasonably related to the violations alleged by the complainant. Accordingly, if the American Airlines ruling is upheld, the OFCCP's authority under the Rehabilitation Act will be greatly curtailed.

Judge Lindeman's ruling may have implications beyond the Rehabilitation Act. OFCCP conducts compliance reviews under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) and under Executive Order 11246. As with the Rehabilitation Act, neither VEVRAA nor its implementing regulations contain explicit authorization for enforcement actions in the absence of an individual complaint. Regulations implementing Executive Order 11246, however, do authorize compliance reviews.

PROPOSED LEGISLATIVE INITIATIVES

The Equal Employment Opportunity Act of 1995

Senator Robert Dole (R-Kansas) and Representative Charles Canady (R-Florida) have proposed legislation to prohibit the use of racial and gender preferences in federal procurement, federal employment, and the administration of federally conducted programs. The Equal Employment Opportunity Act of 1995 (H.R. 2128) would prohibit the federal government from "requiring or encouraging" federal contractors to grant race or gender preferences to employees, suppliers, or subcontractors. Preference is defined broadly as "any preferential treatment" including quotas, set-asides, goals, timetables, and other "numerical objectives." The bill directly attacks Executive Order 11246, administered by OFCCP, by prohibiting the use of goals and timetables.

Senator Dole has described the bill as "standing for a simple proposition: [t]he Federal Government should not discriminate against, nor should it grant preferences to, any individual because of that individual's race, color, ethnic background, or sex." Representative Canady has confirmed that House and Senate floor action on the bill is not expected until 1996.

Independent Contractor Tax Simplification Act of 1995

Representative Jon Christensen (R-Nebraska), with 125 co-sponsors, has introduced a bill to simplify the determination of independent contractor status. The Independent Contractor Tax Simplification Act of 1995 (H.R. 1972) sets forth an alternative to the current 20-factor test of independent contractor status, which has proven burdensome and confusing to employers. If enacted, the bill would set out a three-part test for determining whether a service provider is an independent contractor and not an employee.

Under the first part of the test, the service provider would have to meet one of the following criteria:

(1) has a significant investment in assets and/or training,

(2) incurs significant unreimbursed expenses,

(3) agrees to perform the service for a particular amount of time or to complete a specific result and is liable for damages for early termination without cause,

(4) is paid primarily on a commissioned basis, or

(5) purchases products for resale.

(H.R. 1972, 104th Cong., 1st Sess. Section 3511(b) (1995)).

Under the second part, the service provider would have to meet one of two alternative sets of criteria:

(1) [Alternative 1]

(A) has a principal place of business,

(B) does not primarily provide the service in the service recipient's place of business, or

(C) pays a fair market rent for use of the service recipient's place of business; or

(2) [Alternative 2]

(A) is not required to perform service exclusively for the service recipient, and

(B) in the year involved, or in the preceding or subsequent year -

(i) has performed a significant amount of service for other persons,

(ii) has offered to perform service for other persons through -

(I) advertising,

(II) individual written or oral solicitation,

(III) listing with registries, agencies, brokers, and other persons in the business of providing referrals to other service recipients, or

(IV) other similar activities, or

(iii) provides service under a business name which is registered with (or for which a license has been obtained from) a State, a political subdivision of a State, or any agency or instrumentality of 1 or more States or political subdivisions.

(Id. [section]3511(c)).

Under the final part of the test, the services would have to be performed pursuant to a written contract that states that the service provider is not an employee.

Compensatory Time for All Workers Act of 1995

A bill to amend the Fair Labor Standards Act to allow the use of compensatory time in the private sector has been introduced in the House by Representative Ballenger (R-North Carolina). The Compensatory Time for All Workers Act of 1995 (H.R. 2391) would allow nonexempt employees to receive 1-1/2 hours of compensatory time for every hour of overtime in lieu of overtime pay. The use of compensatory time would be limited to instances in which the employee had agreed to compensatory time in lieu of overtime pay prior to the overtime work, or where provided for in a collective bargaining agreement. Employees could accrue up to 240 hours of compensatory time under the bill. Employers would have to pay employees at their overtime rate for any unused compensatory time at the end of the year. On termination, employers would have to pay employees for unused compensatory time at the higher of the employee's final regular rate or the average of the employee's regular rate in the final three years of employment.

The Department of Education and Employment

Representative Steve Gunderson (R-Wisconsin) and Representative William Goodling (R-Pennsylvania) have proposed the merger of the Departments of Education and Labor and the Equal Employment Opportunity Commission into a newly consolidated Department of Education and Employment. The proposal calls for a single cabinet department with jurisdiction over all education, training, and workforce programs. The Department would be organized around three basic functions: (1) The Office of Workforce Preparation and Policy - coordinating most education and adult training programs; (2) The Office of Workplace Policy - coordinating all safety, employee benefit, and workplace modernization programs; and (3) The Office of Civil Rights - focusing on enforcement of all employment discrimination laws. The new department would be headed by a secretary and three undersecretaries responsible for education and training programs, workplace policy, and civil rights respectively.

The General Accounting Office study of the proposal, released June 28, 1995, found a savings in overhead from the proposed merger of $1.6 billion. GAO cautioned, however, that the dramatic force reductions required to produce the savings could eliminate any savings and suggested a gradual three-year downsizing. The Gunderson proposal has not yet been introduced as legislation.

Morgan D. Hodgson is vice chair and partner in Steptoe & Johnson LLP in Washington, DC, specializing in employment law and general litigation. She advises clients on a broad range of employment law issues and litigates cases on behalf of management in such areas as whistleblower claims, EEO and affirmative action issues, early retirement programs, and disability discrimination. Ronald S. Cooper is a partner at Steptoe & Johnson LLP specializing in federal regulation of employment. He has litigated cases in the federal district courts and courts of appeals throughout the country and has participated in several U.S. Supreme Court cases. He is principal author of a book on the Fair Labor Standards Act Amendments of 1985, published by the International City Management Association.
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Title Annotation:Federal Regulations Update; Equal Employment Opportunity Commission; Office of Federal Contract Compliance Program
Author:Hodgson, Morgan D.; Cooper, Ronald S.
Publication:Employment Relations Today
Date:Dec 22, 1995
Words:2981
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