When strange behavior or certain performance issues are very subtle, should an employer inquire about a medical condition? On one hand, an employer may feel constrained in asking about whether an employee is experiencing a medical problem when an employee exhibits a change in behavior or is not acting the same as usual. Is observable fatigue, irritability, or poor performance just a bad day or is it a medical condition that will raise disability issues. On the other hand, failing performance cannot be ignored just because there is a fear there may be an unknown disability.

Under the Americans with Disabilities Act (ADA), the employer may inquire about whether a medical condition exists that is affecting his or her ability to perform the essential functions of his or her job. The employer is also allowed to inquire about medical problems if it has received reliable information from a third party (e.g. family member).

Employers should always avoid medical condition inquiries before a conditional job offer for employment is made regardless of what they may know or even what the employee may mention. This does not mean the employer cannot ask, for example, whether the applicant has a driver’s license (if the job requires driving) or whether they can operate heavy machinery or equipment if the job so requires. If the employee brings up the disability in the course of the interview, the hiring manager should limit his questioning to whether the employee can do the job applied for as described with or without a reasonable accommodation. The ADA does not require the applicant to disclose the medical condition before accepting the offer.

After an employment offer is made the employer can start asking questions about the applicant’s health as well as require a medical examination. Just recently, the Equal Employment Opportunity Commission (EEOC) issued a Q & A sheet addressing epilepsy and advised employers to ask about same or similar jobs that the employee has held since diagnosis, whether he or she takes any medication, whether there have been any seizures and so on. As employers should know by now, an employer may not withdraw an employment offer if the employee can perform the essential functions of the job with reasonable accommodation, unless the condition poses a direct threat to the health and safety of the employee or others, and this threat cannot be eliminated or reduced through reasonable accommodation.  The threat should be well documented.

With a current employee, the employer should focus on performance and ask the employee if he has anything the employer should know about regarding the drop in performance.  If a disability is mentioned, then the proper steps should be taken and accommodation discussed. However, the EEOC advises that if an employee’s behavior is so obvious that it impacts safety, health, or performance it is alright to inquire about a medical condition or even require a medical examination (e.g. a seizure while working). This medical information must be kept confidential. This may present employee relations issues if the disabled employee requires an accommodation such as special break time(s). The employer cannot tell other employees (although the employee might) that the employee is being given an accommodation, because this will inform them that the employee has a disability.

The EEOC advises that employers train all employees on the requirements of EEO laws including the ADA. This may head off difficult questions about why an accommodation may be necessary and avoid the misunderstanding that the accommodation is “special treatment.” Keep in mind other applicable ADA requirements as well:

·       Employers may request documentation on the disability.

·       A request for an accommodation might not be granted if it creates an undue hardship on the employer.

·       An employer may have to provide more than one accommodation.

An employer is not handcuffed when it comes to subtle changes in performance or behavior that may or may not be related to a disability. Further, not everyone with a medical condition is protected by the law. A person must be qualified for the job and considered disabled according to the following from the EEOC:

“Person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).

A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).

A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).”

For information on how to properly address and respond to performance or behavior issues that could be related to a disability, ASE members can call ASE’s HR Hotline, access the CCH Answers Now in the members only section of the ASE webpage, or go to the EEOC’s website where they will also find Q & A’s and other informational resources on how to respond to situations that may involve disability.  In addition, we have an upcoming class on the Americans with Disabilities Act on March 28th.

Sources: CCH Answers Now; EEOC website – Disability Discrimination and Questions and Answers About Epilepsy in the Workplace and the ADA.