examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity’’.3
Tis standard may be met under the
following circumstances: • When an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can atribute the problems to the medical condition
• If an employer is given reliable information by a credible third party that an employee has a medical condition
• If employer observes symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat
In these situations, it may be job-related
and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination. An employer’s reasonable belief that an
employee’s ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination. Such a belief requires an assessment of the employee and his/her position and cannot be based on general assumptions. Before implementing or revising a
drug policy to include limitations on the use of lawfully prescribed medications and over-the-counter drugs, employers should require human resources to work carefully with management to determine which positions, if any, should be covered by a prescription or over-the-counter drug policy. While asking employees who operate heavy equipment whether they take medications that can affect motor skills is arguably job-related and consistent with business necessity, asking a secretary or receptionist is likely prohibited. Employers must provide reasonable
accommodations under the Rehabilitation Act, ADA, and various state disability
www.datia.org
discrimination laws. Reasonable accommodations must be made on a case-by-case basis. Tey may include transferring an employee to a vacant position, permiting an employee to utilize paid leave while on a particular medication, and/or revising job duties. Employers should seek input from their own doctors, in addition to the employee’s doctors, in determining whether a reasonable accommodation exists.
Conclusion Last year, the Equal Employment Opportunity Commission (EEOC) entered into a consent decree, settling a lawsuit for disability discrimination it filed on behalf of a job candidate who applied for employment with an Arizona business. The business, Bell Lexus/ the Berge Group, withdrew an offer of employment for a salesperson after a pre- employment drug test revealed that the job candidate was taking a prescription drug used to treat a disability that was on the business’s list of unacceptable prescription medications. The EEOC contended that the employer violated the ADA, concluding, “Blanket exclusion policies based on drug test results harm applicants and employers. The ADA requires a case-by-case evaluation of applicants with disabilities to make sure employers assess these applicants on their merits.” The businesses will pay $45,000 to the victim, provide training about the ADA to their managers, supervisors, and human resources staff, and review their employment discrimination policies. Given the new DOT regulations and
decisions such as the one detailed above, employers should be consulting with occupational health drug testing providers, MROs, and subject mater experts to make informed decisions about prescription drug testing and what is and is not permissible. ❚
References 1 2 3
49 CFR Part 40 Section 40.137(e)(3) 49 CFR Part 40 Section 40.327
Enforcement Guidance: Disability-related Inquires and Medical Examinations of Employees under the Americans with Disabilities Act (ADA)
Nina M. French is the managing partner for the Current Consulting Group with over 25 years of experience in employee screening. Nina
has experience in managing drug-free workplace operations, including product development, vendor management, medical review, client services, account management, marketing, and sales strategy. Her consulting emphasis is on helping screening companies streamline operations, define product portfolios, align core business goals, launch new products, increase revenue, and improve client retention. Nina’s experience within the screening industry provides her with the expertise to consult with employers on program design, vendor selection, and best practices. Nina is widely published and speaks at over 40 events each year, including client-hosted educational trainings, webinars, SAPAA, DATIA, NAPBS, iHeart Radio, and SHRM.
Christine M. Jensen, SPHR®
, CWDP, SHRM-
SCP, is the senior human resource consultant for CCG. She has almost 30 years of experience in
human resources, spanning public and private sector employees, including union negotiations, benefits, and compensation. Christine is the site administrator of the Pennsylvania CareerLink®
Luzerne
County, overseeing offices in Wilkes-Barre and Hazleton, where she directs and coordinates all functions and operations. She has experience managing large-scale unionized workforces, administering collective bargaining agreements, administering salaries and benefits, and managing health insurance plans and workers’ compensation programs. She has valuable knowledge and experience in the litigation of employment issues, including discrimination, family leave, disability, workers’ compensation, and wrongful-termination cases
datia focus 23
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48
