Medical Inquiry for Employment Before and After Title I of The Americans with Disabilities Act of 1990: The Role of the Rehabilitation Counselor.
For the over 43 million Americans with disabilities, The Americans with Disabilities Act of 1990 (ADA, Public Law 101-336) is landmark legislation; however, it can only be fully appreciated if persons with disabilities are knowledgeable of the content and educated or aided in the proper procedures to exercise those rights established by the legislation. The provisions of the ADA include the most comprehensive civil rights package since the Civil Rights Act of 1954 and the first legislation "enacted to address the problem of discrimination against individuals with disabilities in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, voting, and access to public services" (Americans with Disabilities Act of 1990: Law and Explanation, 1990). For the vocational rehabilitation counselor the ADA establishes clearly, if not specifically, a new role and responsibility when guiding a client through the employment process under Tire I of the ADA. Title I requires that the essential functions of a job be identified, reasonable accommodation be made unless it is established to be an undue hardship, and there be no discrimination "against any qualified individual with a disability in regard; to any term, condition, or privilege of employment" (ADA of 1990: Law and Explanation, 1990). Specific within Title I are detailed requirements for medical examinations,
The medical examination standards as detailed in Title I are designed to accommodate two necessary and legitimate concerns -- one on the part of people with disabilities, and the other on the part of employers. The concern of people with disabilities is to get a fair chance to demonstrate their abilities for a particular job before an employer is informed about a disability that may not affect job performance. The concern of employers is to be allowed to assess whether an applicant or employee is qualified for, or remains qualified for a particular job" (West, 0., 1991).
In order for employers to make appropriate decisions about workers, many were using healthcare providers during the employment phase to assist them in identifying persons who were "at risk" for injury if placed on a specific job. Such consultation was not only to protect the employer from a potential workers' compensation claim, but also to protect the employee from being placed in a position where, in fact, his or her health would be jeopardized (i.e., a person with a slight hearing loss being placed in a factory that has a known noisy environment; a person with symptoms of cumulative trauma disorder of the hands and wrist being placed on a repetitive assembly line job).
During the 1980's, accepted practice was for a physician to examine a worker and to conduct a series of diagnostic tests to identify potential occupational health factors. Chest x-rays were ordered on employees who may have been in environments of unclean or potentially unclean air, thus causing them upper respiratory problems. Many times, blood work was being done so as to screen out persons who may have had diabetes, or high blood pressure, or other circulatory problems. Physicians were also routinely ordering x-rays of the spine in order to identify persons who should not have been placed on heavy lifting types of jobs. In the early 1980's isokinetic machines were used to identify persons who were "at risk" for back injuries or had spinal issues not yet presented. Initially, the Cybex TEF Unit (Trunk Extension Flexion unit) was used. The B-200 then became available. The B-200 included assessment of lateral flexion and trunk rotation movements, which were not part of the Cybex TEF unit. Since the enactment of the ADA, this testing is being interpreted prohibitive (EEOC, 1992). These machines do not assess whether the person can perform the "essential functions" of a given job. The machines may detect some areas of weakness or limitations, but then to assume the individual can't do a job from these tests is inappropriate. The rehabilitation counselor working with a client to return to work needs to be aware of these issues.
The provision in the act regarding pre-employment examination or inquiries is clear in that the employer cannot inquire as to whether an individual has a disability at the "pre-offer" stage about the applicant's workers' compensation history. Employers may ask questions that relate to the applicant's ability to perform the "essential functions" of the job; however, these questions should not be phrased in terms of disability. For example, an employer could ask whether the applicant has a driver's license, if driving is an essential function of the job, but may not ask whether the applicant has a visual impairment. An individual with an obvious disability can be asked how he or she would complete an essential function or whether an accommodation Would be necessary. There are also provisions for examination inquiry of employees currently working for promotion or transfer. For example, if an employee begins to use an increased amount of sick time, an employer could require a "for cause" medical examination because absences were affecting job performance. The employer cannot require a specific test, such as a test for AIDS/HIV or cancer, unless the healthcare provider can show this test is necessary and due to a job-specific reason. If a job related function is not an essential function, the employer may not exclude the applicant with a disability because of the applicant's inability to perform the function. Rather, the employer must, as a reasonable accommodation, either provide an accommodation that will enable the individual to perform the function, transfer those functions to another position, or exchange the function for one the applicant is able to perform. During preemployment the employer is not allowed to use an application form that lists a number of potentially disabling impairments and ask the applicant to check any of the impairments he or she may have (i.e., diabetes, epilepsy, cardiac problems, etc.). The employer is prohibited from asking how often an individual may require a leave for treatment, or use leave time as a result of incapacitation because of a disability. In the case of a visible disability (i.e., the use of assistive devices), the employer may not ask the extent or cause of the disability, but may question the ability of the applicant to perform the essential functions of the positions as outlined; however, the applicant may be asked to demonstrate, with or without accommodation, the ability to do an essential task.
Agility Testing/Pre-placement Examinations
"Physical agility tests are not interpreted as being medical examinations and, so, may be given at any point in the examination or application process." (EEOC, 1992). These tests are to be given to all similarly situated applicants or employees, regardless of their disability. If such tests tend to screen out an individual with a disability, or a class of individuals with a disability, the employer would have to demonstrate that the test is related to the essential functions and the performance cannot be achieved with reasonable accommodations. Reasonable accommodation has a very lengthy description in the technical assistance manual distributed by the Equal Employment Opportunity Commission (EEOC), specific to Title I of the ADA.
The current interpretation of the ADA allows pre-placement screening, sometimes referred to as post-offer screenings, as long as it is job related. The screening can be conducted after a conditional offer of employment is made to the applicant, and is applied to all applicants who may be hired in a specific job category. All three of the above conditions need to be met. Rehabilitation Counselors need to be aware of what medical screenings or agility testing is required by employers and what the various healthcare providers in their communities offer.
Medical Record vs Personnel File
"A pre-placement screening is conducted by properly trained occupational therapist, physicians, physical therapists, psychologists, exercise physiologists, and/or vocational evaluators. These evaluations utilize simulation of the essential work demands or validated performance tests." (Matheson, 1992). Because healthcare providers are involved in the examination/inquiry, the information that is obtained in the course of the examination is to be treated as confidential. The information is treated differently than it has been in the past. The collecting of information regarding the medical condition or history and the maintenance of this information are to be in separate, locked medical files; confidential, distinct, and separate from personnel records. The exception is supervisors and managers who may need to be informed regarding the necessary restrictions of the work or duties of the employee, and necessary accommodations. The first aid and safety personnel may be informed when appropriate, if the disability could required emergency treatment (i.e., epilepsy). Government officials investigating compliance with this regulation of the ADA are also allowed access to the information.
Similarly, federal privacy statutes regulate the medial record as well as the Family Educational Rights and Privacy Act of 1974. The Privacy Act of 1974 balances government's need for certain information, and the individual's right to the information remaining private. Basically, there are eight principles regarding employee medical records (Stewart, 1992).
1. Openness - The ability to discover what kind of records are being maintained on you as an employee.
2. Individual access - The ability to obtain information, by the individual themselves for personal use, although some records may not be made available.
3. Individual participation in the right to have incorrect information in your file corrected.
4. Collection limitation - The corrected data must be relevant and necessary, and collected directly from the appropriate persons and provide a privacy act statement.
5. Limitation on internal uses - The mandate to obtain the permission to disclose to other employees only after the employee allows for this disclosure.
6. Disclosure limitations - This applies to external services, such as law enforcement.
7. Information management - The agency must manage the information it collects.
8. Accountability - The employer can be sued for damages for releasing information without appropriate releases.
There are also state privacy regulations. Many states have regulations which parallel and amplify the federal privacy rights. There are additional regulations which exist regarding the discussion of communicable disease information, medical record content, and professionals licensed as practitioners discussing information outside the appropriate arenas.
Basically, personnel/human resource departments need to have two employee files. The medical file should contain confidential medical information about the employee, and the second file contains the classification, pay status, benefits earned, performance appraisals, etc. The medical file is viewed as a medical record in a healthcare institution. These files are protected and should be:
1. not accessible to all employees,
2. locked at all times unless being used,
3. supervised by an appropriate person, and
4. used in deciding physical restrictions and reasonable accommodations for a given employee.
In summary, the ADA requires that preemployment job specific examinations and inquiries now be done as a post-offer or pre-placement screening of that individual in a specific job. The employer's examination must meet the following three examination criteria:
1. It is being given to all entering employees in the same job category.
2. In does not have to be job related or consistent with business necessity; however, if a conditional job offer is withdrawn because of the results of the medical examination, the employer must be able to show that the reasons for excluding the person were job related and the person is being excluded to avoid a "direct threat" to the health or safety of the worker or their co-workers, and that no reasonable accommodation is available that would enable this person to perform the essential functions without significant risk to health or safety, or that the accommodation would cause an "undue hardship" to the employer.
3. The results must be kept confidential, except to first aid and safety personnel, for insurance purposes, governmental investigations of compliance with ADA, state workers' compensation offices and second injury funds, and/or to supervisors who need to know what the work restrictions are and what reasonable accommodations might be made.
Because of the framework in which the medical examination and pre-placement testing is being done, healthcare practitioners and rehabilitation counselors, as well as employers should understand the issues in order to proceed with doing business, making the correct worker-work match, and complying with the ADA. Perhaps, it is incumbent upon all employees to be fully aware of their rights under the ADA. For the employee with a disability, working with a rehabilitation counselor toward placement or return to employment, understanding the ADA becomes advantageous and essential.
Rehabilitation Counselors: Roles and Function
New roles and responsibilities are defined for the rehabilitation counselor, subsequent to ADA. These are client awareness, client advocacy and empowerment, potential employer awareness and education, rehabilitation/healthcare agency selection or referral, and the identification and recommendation of reasonable accommodations. New responsibilities for a rehabilitation agency to serve the client's interest under ADA may, in fact, conflict with the employer. Retaining business and industry referrals is vital to an agency's existence. Empowering employees with disabilities and avoiding discrimination litigation are roles the rehabilitation counselor offers business and industry. Balancing these roles is the challenge to rehabilitation counselors.
Client education in the protection of the ADA will provide an understanding, not only of the employer's rights and responsibilities specifically related to the employment process, but to their own responsibility in that process. A counselor effectively working with employers to improve compliance to the ADA must educate the employer what is legal under the law. The client has the possibility to see employment in which they are qualified and are able to perform the job tasks with or without accommodation. The counselor's role in providing clients with an understanding of their abilities, as well as limitations, will be increasingly important in the employment process as employers try to comply.
Education in the area of available accommodations, both for clients and employers, will be an important service. The identification of reasonable accommodations that a particular person may utilize in performing specific tasks and education of the client in those accommodations may be the difference in employment with accommodation and unemployment due to lack of awareness of the accommodations available. Understanding pre-employment screening procedures and the potential advantages and limitations to the employer and employee will enhance the counselor's ability to recommend accommodations and successfully place employees in permanent, productive positions addressing the legitimate concerns of both potential employee and employer.
Client advocacy may be necessary in certain situations. Conversely, employer advocacy may be necessary as we struggle to understand the ADA. It will be more important than ever for the counselor, to stay apprised of the changes in this legislation as it is validated both by the mediation process provided for in the ADA and litigated in the courts. Employment discrimination and the use of pre-employment screenings and pre-placement physicals will no doubt be tested in court with situations arising to examine each provision. The ADA provides for a case-by-case exam/nation of the facts unique to a particular situation. A well-informed counselor will be a welcome advocate in the case of discrimination.
The purpose of the Americans with Disabilities Act of 1990 "is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to bring persons with disabilities into the economic and social mainstream of American life; to provide enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing these standards on behalf of individuals with disabilities" (Americans with Disabilities Act of 1990: Law and Explanation, 1990). In meeting that purpose, Title I of the ADA provides for the equal employment opportunity, access, and a chance for successful employment of a qualified individual who is disabled. The act requires employer is to look lawfully at all persons' abilities and consider accommodations. The rehabilitation counselor will be called upon to assume a proactive role toward the goal of making the legality of the Americans with Disabilities Act of 1990 the reality for Americans with disabilities.
Commerce Clearing House Editorial Staff Publication (1990). Americans with Disabilities Act of 1990: Law and Explanation. Chicago: Commerce ClearingHouse, Inc.
Matheson, L. (1992). Pre-screening under the ADA. Industrial Rehabilitation Quarterly (Vol. 5, Number 1).
Stewart, E. (1992). Risky Business - Sharing of Information. In a presentation to the Information Management Assembly of the Medical Group Management Association, New Orleans, LA.
U.S. Equal Employment Opportunity Commission (1992). A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act. Washington, D.C.: U.S. Equal Employment Opportunity Commission.
West, J. (1991). The Americans with Disabilities Act: From Policy to Practice (p. 97). New York: Milbank Memorial Fund.
Received: November 1993
Revision: November 1994
Acceptance: December 1995
Thomas F. Fisher, M.S., OTR, CCM, Assistant Professor, Occupational Therapy, Eastern Kentucky University, 245 South Point Drive, Lexington, Kentucky 40515.
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|Author:||Bender, Patricia A.|
|Publication:||The Journal of Rehabilitation|
|Date:||Oct 1, 1995|
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