Just this week, the EEOC issued new disability regulations with guidance regarding how employers handle those with cancer, diabetes, epilepsy, and intellectual disabilities in the workplace. While there is a lot of redundancy in each guideline, each guideline weighs in about 10 pages long. So, busy HR pros – should you put aside that good summer reading murder mystery or romance you had planned and kick back, relax, and read some new regulations? Sounds like fun, doesn’t it? Well, because we think you already work hard enough and really don’t want to see your summer reading program trashed, we’re giving a quick summary of what you need to know –and we promise to use far less than 40 pages to do it.
- Be careful what you ask for (and how you ask it). The diseases covered are almost always permanent illnesses. Few people ever get completely free of them or their effects. However, as an employer, you CANNOT ask someone about them. Even if they bring it up during the interview process just leave it alone. You have to be careful here because while you can ask “Can you do …,” you can’t ask “Because of your diabetes, can you do …”.
- If you ask one person, you have to ask everyone. This is kind of like my first grade teacher’s rule that if you bring some treat for one, you have to bring them for everyone. This time it has to do with required pre-employment medical exams. While it is generally acceptable for employers to require pre-employment exams if they ask for an exam for one employee, they must ask for an exam for all those to whom an offer is made for the same job/job category. Employers must also be careful not to learn too much when conducting medical exams. For example, suppose it is discovered during the exam that a potential hire has cancer. Now what? If the applicant told during the interview that they could perform the required job functions, the knowledge you now possess could cast a shadow of doubt over all of your future employment decisions regarding this person, unless you can show that those making each decision did not have access to it. For this reason, be careful to only conduct fitness-for-duty tests or ask medical questions which are actually related to the job you have offered rather than using broad medical questionnaires or “complete medical exams.” Remember to be sure to separate such information into the employee’s confidential medical file.
- Keep it short and sweet. If an employee volunteers information concerning a disabling condition, all an employer needs to say in response is, “Please let us know if that will affect your job in any way” or “if you will need any assistance with your job.” That’s it. Then, if needed, you can interact with the employee to determine the extent of the assistance needed.
In a future blog post we’ll finish off the requirements of these new EEOC guidelines — but rest assured we’ll leave you plenty of time for your more entertaining summer reading.