EAP generically written into disciplanry action responses holds no water for agency
The FAD also did not recognize that the Rehabilitation Act’s restrictions
on inquiries and examinations apply to all employees, not just individuals
with disabilities:
This statutory language makes clear that the ADA’s restrictions on
inquiries and examinations apply to all employees, not just those with
disabilities. Unlike other provisions of the ADA which are limited to
qualified individuals with disabilities, the use of the term “employee”
in this provision reflects Congress’s intent to cover a broader class of
individuals and to prevent employers from asking questions and conducting
medical examinations that serve no legitimate purpose. Requiring an
individual to show that s/he is a person with a disability in order
to challenge a disability-related inquiry or medical examination would
defeat this purpose. Any employee, therefore, has a right to challenge a
disability-related inquiry or medical examination that is not job-related
and consistent with business necessity.
EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (ADA)
(July 27, 2000) (web version) (Guidance), at footnote 15. Accordingly,
complainant did not need to establish that he is disabled within the
meaning of the Rehabilitation Act in order to prevail in his instant
claim.
Next, we note that an employer may require a medical examination of
an employee only if the examination is job-related and consistent with
business necessity. See Guidance at 5. This requirement is met when the
employer has a reasonable belief, based on objective evidence, that (1)
an employee’s ability to perform the essential job functions is impaired
by a medical condition; or (2) that an employee poses a direct threat
due to a medical condition. See Guidance at 14. Objective evidence is
reliable information, either directly observed or provided by a credible
third party, that an employee may have or has a medical condition that
will interfere with his/her ability to perform essential job functions
or will result in direct threat. Id. Where the employer forms such a
belief, its disability-related inquiries and medical examinations are
job-related and consistent with business necessity. Id.
If the employer notices visible signs of disability
If the employer requires employee medical exam
ref:
Clifton W. Crawford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01200611351
Agency No. 4F-926-0201-04
