HomeMy WebLinkAboutR-1991-D5984 Pre-Employment Physical Exam Policy•
RESOLUTION NO.D 5984
A RESOLUTION authorizing and adopting a pre-employment physi-
cal examination policy regarding City of Yakima
personnel and candidates for employment.
WHEREAS, the City of Yakima workforce is covered by the
Americans With Disabilities Act of 1990, Pub. L. No. 101-336,
which places upon the City of Yakima as employer certain
obligations in the administration of pre-employment physical
examinations; and
WHEREAS, the City of Yakima desires to employ and main-
tain a workforce physically and mentally fit to perform as-
signed job functions, which purpose can be furthered by the
administration of pre-employment physical examinations, now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The attached document entitled "City of Yakima Pre -Em-
ployment Physical Examination Policy" is now effective for all
employment candidates and current personnel of the City of
Yakima.
ADOPTED BY THE CITY COUNCIL this 6ie9 day of V it4.ft-,
1991.
ATTEST:
City Clerk
(res/phsclexm.sc)
O
ITEM TITLE:
SUBMITTED BY:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting Of
Consideration of a Resolution Adopting a City Policy
Regarding Pre -Employment Physical Examinations
Dick Zais, City Manager
Frederick C. Stouder, Assistant City Manager
-Sheryl M. Smill-Deputy Personnel Officer
CONTACT PERSON/TELEPHONE: Sheryl M. Smith, 575-6090
SUMMARY EXPLANATION:
/0
8/20/91
The Council has previously approved a number of personnel/human resource related
policies on subject matters covering sexual harassment, substance abuse in the workplace,
and AIDS/life threatening illnesses. Attached for your consideration is another policy on the
continuum of personnel issues regarding pre-employment physical examinations. The
purpose of this policy is to ensure that individuals are physically and/or mentally fit to perform
the duties of the position to which they are being appointed and thereby ensuring the safety,
health and well being of other employees and the public as well as serving the citizens of
Yakima in an efficient and cost effective manner.
This policy represents many hours of research and discussions with management staff. The
procedures contained within the policy were intended to comply with the requirements of the
Americans With Disabilities Act (ADA) which goes into effect July 26, 1992, and is applicable
to the City of Yakima. Attachment C is an informational bulletin on the Americans With
Disabilities Act for your information.
Accurate job descriptions which clearly outline position duties and responsibilities, as well as
the physical and/or mental requirements of a position, are imperative ta. compliance with the
Federal Americans With Disabilities Act. Accordingly, a City-wide review of all job
descriptions mustbe done and is a critical component of the City's Comprehensive
Workforce Planning effort currently in progress.
X Resolution Ordinance Contract Minutes Plan/Map
Notification List X Other (Spec' ) Policy and Information Bullejjn '
APPROVED FOR SUBMITTAL: . v-'
STAFF RECOMMENDATION: Adopt resolution.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION: iC��L=�
7D-10 SS.1
1 - A11/91
y Manager
•
Memorandum
August 13, 1991
To: Department Heads & Division Managers
From: Dick Zais, City Manager
Sheryl M. Smith, Deputy Personnel Officer
Subj: Pre -Employment Physical Examination Policy
This policy outlines the procedures for pre-employment
physical examinations. The purpose of the pre-employment physical
examination is to determine if an individual is physically and/or
mentally fit to perform the job and to ensure that their physical
and/or mental condition will not endanger the health, safety or
well-being of other employees or the public. Anyone (Management or
Civil Service) who has been offered either initial employment with
the City, or under certain circumstances, a promotional opportunity,
shall be required to satisfactorily complete a medical examination
• prior to appointment after having been offered the position on a
conditional basis. For the purposes of this policy, a promotional
opportunity may include promotion, lateral transfer or demotion. A
pre-employment physical exam shall be required for promotional
appointments to Charter Civil Service positions and on a limited
basis for Fire Civil Service positions (Fire PERS) when both a
promotional and an outside register have been utilized to certify
three names for consideration for final selection. Pre-employment
physical exams shall not be required when promotional registers
only are used for the certification of applicants for consideration
for final selection. Appointments shall not be made until the
examining physician has submitted the results of the examination to
the Personnel Division. Any applicant who is required to undergo a
pre-employment physical examination shall be required to sign a
"Memorandum of Understanding" (Attachment A) before taking the
examination and complete a Health and Working Condition
Questionnaire (Attachment B).
Pre-employment physical examinations will vary in scope
depending upon the type of work the new employee will be expected
to perform. A class specification, which specifies duties and
responsibilities as well as mental and physical requirements of the
8/13/91
ir/Employment Entrance
Exams 7
•
position the employee will be performing, will be furnished to the
examining physician. The physician shall use the class specification
as the basis for examining that employee and shall determine
whether or not the candidate is capable of performing the duties and
responsibilities of the position as specified. For the purposes of
this policy, the term "physician" shall also include licensed clinical
psychologists for the determination of mental fitness for
employment.
Pre-employment physical examinations may be scheduled by
the Personnel Office or by the applicable Department Head or
Division Manager. Generally, at least one week's advance notice for
scheduling the physical examination prior to the appointment date
will be necessary. Again, pre -placement examinations will only be
scheduled for a candidate ate a conditional job offer has been
made. Only individuals who are conditionally offered employment
will be required to satifactorily complete a pre-employment
physical exam.
Upon receipt of the physicians report, the Personnel Officer or
designee will notify the appointing authority of the results of the
examination and will make the appropriate recommendation
regarding appointment of the candidate. In the event a candidate
does not pass the examination, the Personnel Officer will, if
necessary, after consulting with the physician, explain the reason
for the failure to the candidate. If it is determined necessary, the
physician may explain the reason for the failure to the candidate.
The appointing authority shall request the Chief Examiner to remove
the candidate's name from the Civil Service register if the candidate
is found physically or mentally unable to perform the duties of the
position and the individual's condition cannot be reasonably
accommodated in the workplace. In the event the candidate's
inability to perform the job is due to a condition of a limited
duration, the candidate may request that their name be bypassed
until they are fit to perform the duties of the position. Further, the
candidate's name may be removed from the register for refusing to
submit to a medical examination or for refusing to complete medical
history forms.
•
In the event the examining physician reports the candidate to
be physically or mentally unfit to perform the work in the position
to which appointment is to be made, the candidate shall have a
period of three working days, from the date of notification of such •
8/13/91
ir/Employment Entrance
Exams 8
• •
• determination by the examining physician, to indicate in writing to
the Personnel Officer his/her intention to submit the question of
his/her physical or mental unfitness to a physician of his/her own
choice at his/her own expense. Should there be a difference of
opinion relative to the fitness for employment between the City's
examining physician and the physician chosen by the candidate, then
the two physicians shall confer and make a recommendation on the
physical or mental fitness of the applicant.
•
•
The expenses for the pre-employment physical examination
shall be paid for by the City of Yakima under the following
conditions:
a. The candidate has accepted a conditional offer of
employment and has passed the pre -placement
examination.
b. The candidate has accepted a conditional offer of
employment and fails the examination and cannot
qualify for employment with the City.
If the candidate initially accepts the conditional offer of
employment, passes the pre-employment physical examination and
then rejects the conditional offer of employment with the City, t h e
candidate will be required to pay the cost of the pre-employment
physical examination.
8/13/91
it/Employment Entrance
Exams 9
MEMORANDUM OF UNDERSTANDING
TO WHOM IT MAY CONCERN
Notification to Applicant receiving a Pre-employment Physical
Examination:
One of the requirements for obtaining employment with the
City of Yakima is the successful completion of a physical and/or
mental exam. Before you go for the physical exam, make sure
that you are planning to accept employment with the City of
Yakima. The City will pay for the exam under the following
conditions:
1. You pass the exam and accept the position with the City.
2. You fail the exam and cannot qualify for employment with
the City.
If you take the physical exam and then turn down employment with
the City, you shall be required to pay the cost of the physical. Make
sure you want the job before taking the physical.
Understandinn of Agreement:
I, have applied for the position of
_ with the City of Yakima. I
understand and agree that any doctor, hospital or clinic may conduct
medical tests and may release all information necessary for the City of
Yakima to determine abilities to perform Job duties now or in the
future. I hereby certify that I have read and fully understand the terms
of the above notification. I further understand that my signature below
makes me responsible for costs incurred for failure to accept the
position if it is offered to me.
Signature:
Date:
Witness:
Pre -placement Exams
8/13/91
•
•
ATTACI,MENT A
HEALTH AND WggKING CONDITION QUESTIONNAIRE
To be completed �plicant and submitted to physician.
Print Name:
Position
he ersonne rvision -s ••term,ned that position, .icaterequires spec, c • ys+ • capabilities and/or working conditions. m• oyment is
conditioned on an examination by a City appointed physician to determine if the applicant can fulfill the requirements. The purpose of this process is
to insure applicant can meet minimum performance requirements and to identity potential problems or limits so they can be taken into consideration
in order to avoid risk of injury or liability to employees, citizens or the City.
SUPERVISOR INSTRUCTIONS:
APPLICANT INSTRUCTIONS:
A- Indicates no known problem
ACTIVITY
A B
U U1-
U U2
U U3.
U U 4.
U Ua
U U7.
U Ua
U Ua
U U 10.
U U11.
U U12.
U U 13.
u U 14.
U U15.
U U 16.
u U17.
U U18.
7 U 19.
U u20.
UU21.
U u�
U U 23-
u U24.
U u25.
U U25.
U U27.
uu�•
U u29.
U U30 -
U U31.
U U32.
U U 33.
U U3.
U U35
Walling
Walking rough terrain
Running
Sitting
Standing
Standing long periods
Maintaining balance
Climbing stairs
Climbing ladders
Climbing inclines
Kneeling
Bending
Stooping
Crouching
Crawling
Reaching
Pushing
Pulling
Balancing
Twisting
Talking
Sense of Touch
Finger Dexterity
Gripping --fingers & hands
Hammering
Shoveling
Digging
Throwing
Mcging
Swimming
Operating Jackhammer
Lifting & carrying 1-20 lbs.
Lifting & carrying 20-50 lbs.
Lifting & carrying 50-100 lbs.
Operating passenger vehicle
U U 36. Operating heavy truck
U U 37. Operating heavy equipment
U U 38. Operating rotating machinery_
U U 39. Hearing voice conversation
U 40. Hearing alarms
Circle number of each item that applies.
Check appropriate box for each item that is circled.
B • Indicates limitation or problem
A B
Degree % U U 41. Close vision
U U 42. Far vision
U U 43. Side vision
.. _ U U 44. Depth perception
U U 45. Night vision
_ U U 46, Color vision
WQRKWNW C ikOMONS
U U 1. Work indoors
U U 2. Work outdoors
U [ j 3: - Work at heights
UU4.
Degree 56
U Ua
U U&
Uu7
U U a
U U a
UUlo.
U U 11.
UU12
U U 13.
U U14.
U U 15.
U U 1&
UU17.
U U 18.
U U 1s.
UUP
UU21.
UUP
U U23.
U U 24.
U U25•
U ua
U UD.
U U28 -
U U 2•
U Li 30.
U U 31.
UU32.
U U 33.
Work in confined space
Work over water
Working alone
Working with others
Working in remote locations
Noisy work area
Direct sunlight
Outside temperature extremes
Uneven footing
Dampness
Dry
Work in water or slippery surfaces
Dirty
Exposure to smoke
Exposure to electrical hazards
Exposure to noxious odors,fumes,chemicals
Exposure to epoxy chemicals
Exposure to poison oak or ivy
Exposure to dust or pollen
Exposure to insect stings
Exposure to solvents, oil, ink
Vibration
Wearing hard hats
Wearing safety glasses or goggles
Wearing ear plugs or muffs
Wearing respirators
Wearing rubber gloves or plastic gloves
Wearing rubber boots
Wearing chemical resistant clothing
Shift rotation
-527-7='epercent o time that may be requireto pe orm activity
Degree =1 - Strenuous (heavy physical exertion); 2 - Moderate (medium to heavy physical exertion);
3 - Light (fight physical exertion); N/A - Not Applicable
Primary Working Conditions:
General Comments:
I certify that the information on this questionnaire is true and correct to the best of my knowledge. I agree that
falsification or withholding of pertinent information will be grounds for discharge from employment or removal from a Civil
Service Register.
Date:
Signature;
TPERSNL-1 Z.H&WSurrey
1 -52391
ATTACHMENT B
Fair Employment Practices
•
• August 1, 1990
Questions and Answers on the Americans With Disabilities Act
• The Americans With Disabilities Act (ADA)
may be the most significant law in terms of poten-
tial impact on business since the 1970 Occupational
Safety and Health Act, predicts management law-
yer John Tysse of Washington, D.C. Not since the
1964 Civil Rights Act have employers been so
concerned about an anti -discrimination statute's
effect on them. Here are answers to some of the
most frequently asked questions about the law.
What is ADA?
The law prohibits discrimination against individ-
uals with disabilities in employment (Title I), pub-
lic services and transportation (Title I1), public
accommodations (Title III), and telecommunica-
tion services (Title IV). Title V is a miscellaneous
section that includes such things as exemptions,
attorney's fees, coverage of Congress, and amend-
ments to the 1973 Rehabilitation Act.
When is it effective and who is covered by ADA?
Beginning on July 26, 1992, ADA will cover
employers engaged in an industry affecting com-
merce that have 25 or more employees for each
working day in each of 20 or more calendar weeks
in the current or preceding calendar year. Begin-
ning on July 26, 1994, employers of 15 or more
workers will be covered.
The law also applies to employment agencies,
labor organizations, joint labor-management com-
mittees, and state and local governments. Excluded
are the federal government and government-owned
corporations, Indian tribes, and bona fide tax
exempt private membership clubs. Religious orga-
nizations may give preference in employment to
their own members and may require that employ-
ees conform to their religious tenets.
What discrimination Is prohibited?
Covered employers may not discriminate against
a "qualified individual with a disability" in regard
to job applications, hiring, advancement, discharge,
compensation, training, or other terms, conditions,
or privileges of employment. This means that em-
ployers may not refuse to hire an applicant because
of a disability, and the application process may not
serve to screen out persons with disabilities.
Furthermore, employers may not refuse to pro-
mote or provide training to workers who are or
become disabled, and must pay employees with
disabilities the same salary as they would non -
disabled workers holding the same or similar jobs.
Moreover, employers may not fire a worker who
develops a disability, including a disease such as
cancer or AIDS, so long as that individual remains
qualified and able to perform the duties of the job
with reasonable accommodations.
Who Is disabled?
An individual with a disability is one who "has a
physical or mental impairment that substantially
limits one or more major life activities, a record of
such an impairment, or who is regarded as having
such an impairment." A major life activity includes
functions such as caring for oneself, walking, see-
ing, hearing, speaking, and working.
Court decisions under the Rehabilitation Act and
state handicap laws are not uniform in their inter-
pretations of what constitutes a disability, however.
Obesity is a disability according to some courts but
not others, for example. Furthermore, an individual
may be covered by ADA even though no condition
substantially limiting a major life activity exists —
a recovered cancer patient is one example, a person
with a disfiguring scar is another.
Who is a qualified individual?
A qualified individual with a disability is one
who, with or without reasonable accommodations,
can perform the "essential functions" of the job.
Essential job functions should be included in de-
tailed job descriptions. A person who cannot safely
perform a job is not qualified unless a reasonable
accommodation would eliminate the risk. An indi-
vidual suffering from uncontrolled seizures is not
qualified to drive a school bus, for example. Such
persons might be qualified to perform other jobs,
however, where their conditions do not pose a
threat to the health or safety of others.
What about workers with AIDS and other communi-
cable diseases?
Individuals with the AIDS virus and other com-
municable diseases are protected from bias by
ADA so long as they are otherwise qualified and do
not pose a risk to the health or safety of others. On
Jan. 26, 1991, the Secretary of Health and Human
Services is required to publish a list of diseases that
can be transmitted through the handling of food, a
list that will not include' AIDS. Employees with
diseases on the secretary's list may be transferred
from food handling jobs if the danger to public
health and safety cannot be eliminated by some
other reasonable accommodation.
What is a reasonable accommodation?
A reasonable accommodation is one that will
enable an otherwise qualified individual with a
disability to perform the essential functions of a
job. Such accommodations may include making
existing facilities readily accessible, job restructur-
Source: The Bureau of National Affairs Inc, ATTACHMENT C
Fair Employment Practices Series 8/2/90
Fair Employment Practices
ing, or providing modified equipment. Employers
are not required to provide accommodations that
would impose an undue hardship on their business.
What constitutes an undue hardship?
To determine whether an accommodation would
impose an undue hardship, and thus not be reason-
able, factors including the cost of the accommoda-
tion and the size and financial resources of the
employer are considered.
1s affirmative action required?
There are no quota requirements under ADA
and employers do not have to prepare affirmative
action plans.
Can pre-employment physicals be given?
Pre-employment physicals and inquiries as to
whether job applicants have disabilities or as to the
nature or severity of such disabilities are all dis-
criminatory. However, employers can require medi-
cal examinations after an offer of employment has
been made and prior to the commencement of
employment duties, so long as such physicals are
required uniformly of all entering employees, the
information is kept confidential in separate medical
files, and it can be shown that such physicals are
job-related and consistent with business necessity.
For example, a restaurant or hospital can require
medical information to determine if an applicant
has a communicable disease that can be transmit-
ted by performing the essential duties of the job
after the applicant has been offered employment.
Employers also may conduct voluntary medical
examinations that are part of employee health pro-
grams, so long as the information obtained is kept
in separate confidential medical files.
Can employers conduct drug tests?
Drug tests are not medical examinations under
ADA and thus are not subject to the same restric-
tions as other employment physicals. The alcohol
and illegal drug standards adopted by the Defense
Department, Nuclear Regulatory Commission, and
Transportation Department apply to employees in
industries subject to those regulations, and employ-
ers may require that all employees conform with
the requirements of the Drug -Free Workplace Act
of 1988 (41 U.S.C. 701 et seq.).
Can an individual with a disability be fired?
Workers with disabilities must be able to ade-
quately perform the essential functions of the job.
An unqualified employee need not be hired and an
employee who cannot do the job with reasonable
accommodations can be discharged, Employees
with disabilities can and should be treated like any
Page 92
August 2, 1996
other employee weregard to dischargeable viola-
tions of company policy. Moreover, an employer
can prohibit the use of alcohol and illegal drugs at
the workplace, can require that employees not be
under the influence of alcohol or illegal drugs on
the job, and can discharge any employee for viola-
tions of these requirements.
Current illegal drug users and alcoholics Who
cannot safely perform their jobs arc not protected
by ADA, although those who have been rehabilitat-
ed, who are participating in a supervised rehabilita-
tion program and are not currently using drugs, or
who are erroneously regarded as engaging in the
use of illegal drugs are covered.
Does ADA require modifications to workplace fa-
cilities?
It is discriminatory to fail to remove structural
architectural and communication barriers in exist-
ing facilities where such removal is "readily achiev-
able" — easily accomplished without much diffi-
culty or expense. It is also discriminatory to fail to
make reasonable accommodations in the workplace
that would enable a person with a disability to
perform a job, including making changes to the
physical surroundings to provide accessibility.
With regard to existing facilities, Congress in-
tends only changes that are quick, simple, and
relatively inexpensive to make, according to Law-
rence Roffee, executive director of the federal Ar-
chitectural and Transportation Barriers Compli-
ance Board. The board will issue guidelines under
ADA and work with the Justice Department in
interpreting the law's public accommodations title.
In determining whether removal of a structural
barrier is readily achievable, such things as the
nature and cost of the modification and the size,
financial resources, and type of business are perti-
nent.
New facilities must be accessible and usable by
individuals with disabilities except where it is struc-
turally impractical to do so. In general, elevators do
not have to be installed in buildings that are less
than three stories or have less than 3,000 square
feet, except for shopping centers, malls, and the
offices of professional health care providers.
The accessibility of buildings applies not just to
otherwise covered employers but to all places of
public accommodation without regard to size, ex-
cept that during the first six months after Title III's
effective date no civil action may be brought
against businesses employing 25 or fewer workers
with gross receipts of 51,000,000 or less, and during
the first year after the effective date, against busi-
nesses employing 10 or fewer employees with gross
receipts of $500,000 or less. Title III goes into
effect on Jan. 26, 1992.
•
•
•
i C:0[Fr
CONFIDENTIAL - CONTAINS ATTORNEY WORK PRODUCT
MEMORANDUM
January 2, 1991
TO: Dick Zais, City Manager (�
FROM: Jim Tree, Assistant City Attorney �J
SUBJ: Pre -Employment Physical Exams
I have been asked whether the City can give pre-employment physi-
cal examinations. The answer to this question is yes. The City
may require an applicant to undertake a pre-employment physical
exam as limited by the restrictions imposed by state and federal
law.
Sheryl Smith has gathered together a wealth of information re-
garding the "how to" of setting up pre-employment physical exami-
nations. In setting up the program for the City of Yakima, the
legal standards discussed below should be observed. I will begin
with a summary of some of the important legal principals to be
applied and following that is a more detailed reference to state
and federal law on this subject.
SUMMARY EXPLANATION
Pre-employment physical examinations are permissible under the
law. The purpose for which the information obtained is to be used
is restricted.
Under state law, physical exams may be used to establish mental or
physical conditions which:
1. Are based on a bonafide occupational qualification or
2. Prevent the proper performance of the worker involved.
State law also prohibits AIDS testing unless the absence of HIV
infection is a bonafide occupational qualification; that is, when
performance of a particular job can be shown to present a signifi-
cant risk, as defined by the Board of Health by rule, of trans-
mitting HIV infection to other persons, and there exists no means
of eliminating the risk by restructuring the job.
The Americans With Disabilities Act (ADA), which goes into effect
on July 26, 1992, also limits the purpose for which pre-employment
physical exams may be used and gives further guidance on the
subject.
(mem/physical)
1
411
Under the ADA, physical exams that inquire into ability of an
applicant to perform job-related functions are permitted, but not
for other purposes.
A physical exam may be used under the ADA for that purpose and 411
also with the following limitations:
1. The physical exam is to be given after an offer of
employment has been made to a job applicant and prior to
the commencement of employment duties to such appli-
cant.
2. The offer of employment may be conditioned on the re-
sults of such examination if
(A) All entering employees are subjected to such an
examination regardless of disability, and
(B) The information obtained regarding the medical
condition or history of the applicant is collected
and maintained on separate forms and in separate
medical files and is treated as a confidential
medical record.
Under the ADA, it may be a defense to a charge of discrimination
that the physical exam used to screen out an applicant with a
disability has been shown to be made on the basis that the dis-
qualification was because the disability was job related and
consistent with business necessity, and such performance could not
be accomplished by reasonable accommodation.
Under the ADA, if an employer has prepared a written description
as to the functions of a job before advertising or interviewing an
applicant for the job, that description shall be considered evi-
dence of the essential functions of the job in an action brought
under the ADA. It seems almost essential to have written stan-
dards and functions of a job for each particular job in order to
meet the requirements imposed by state and federal law.
What follows is a more detailed reference to state and federal
law.
STATE LAW
RCW 49.60.180 states that,
"It is an unfair practice for any employer:
(1) to refuse to hire any person because of
...the presence of any sensory, mental, or
physical handicap, unless based upon a bona -
fide occupational qualification: provided,
that the prohibitation against discrimination
because of such handicap shall not apply if
the particular disability prevents the proper
performance of the particular worker in-
volved.
-
(mem/physical)
•
•
•
1
•
• •
Therefore state law does not prohibit pre-employment physical
exams but any disqualification of an applicant based on the re-
sults of the physical exam must be based on bonafide occupational
qualifications or a showing that the particular disability of the
applicant prevents the proper performance of the particular work-
er.
In addition, the Washington Administrative Code addresses pre-
employment discrimination issues. Pertinent sections include
WAC 162-12-130 which states it is unfair practice to make any
inquiry or keep any record of ... handicap, before, during, or
after employment, for the purpose of discriminating on these
grounds, unless the particular quality inquired about is a bona -
fide occupational qualification.
WAC 162-16-020 helps define "bonafide occupational qualification."
Therein at Subsection (2) it states,
"The term 'bonafide occupational qualifica-
tion' has not been defined by the legislature.
Its meaning must be worked out through experi-
ence in administering the law and with refer-
ence to the general purposes of the law
against discrimination and other expressions
of public policy. The commission has so far
recognized two area where ... handicap may be
a bonafide occupational qualification: (a)
Where a person's ... handicap will be essen-
tial to, or will contribute to, the accom-
plishment of the purposes for which the person
is hired. (b) When ... handicap must be
considered in order to correct a condition of
unequal employment opportunity."
Also, WAC 162-12-140 sets forth certain pre-employment inquiries
that are approved and examples of ones that would be considered
unfair. In this section under the heading of "Handicap" is con-
sidered to be a fair pre-employment inquiry to ascertain, "whether
applicant has certain specified sensory, mental, or physical
handicaps which relate reasonably to fitness to perform the par-
ticular job. Whether applicant has any handicaps or health prob-
lems which may affect work performance or which the employer
should take into account in determining job placement." However,
it is an unfair pre-employment inquiry to ask, "over -general
inquiries (e.g. 'do you have any handicaps?') which would tend to
divulge handicaps or health conditions which do not relate reason-
ably to fitness to perform the job."
A. AIDS TESTING
RCW 49.60.172 makes it an unfair practice to require an individual
to take and HIV test, as a condition of hiring, promotion, or
continued employment unless the absence of HIV infection is a
(mem/physical)
- 3 -
bonafide occupational qualification for the job in question.
Subsection 3 of RCW 49.60.172 states
"The absence of HIV infection as a bonafide
occupational qualification exists when per-
formance of a particular job can be shown to
present a significant risk, as defined by the
board of health by rule, of transmitting HIV
infection to other persons, and there exists
no means of eliminating the risk by restruc-
turing the job."
FEDERAL LAW
In addition to state law, the Americans with Disabilities Act
(ADA) of 1990 was signed into law on July 26, 1990. The ADA
prohibits discrimination against qualified people with disabili-
ties in the area of employment. Employers with 24 or more employ-
ees must comply with the ADA by July 26, 1992.
The ADA prohibits employers from discriminating against a "quali-
fied individual with a disability" in regard to job applications,
hiring ... or other terms, conditions or privileges of employment.
Disability is defined as a physical or mental impairment that
substantially limits a major life activity such as walking, see-
ing, hearing, or speaking. An individual is also considered to be
disabled if they have a record of a life -limiting impairment or if
the individual is regarded by others as being impaired.
Employers are required to make "reasonable accommodations" to the
known physical or mental limitations of an otherwise qualified
individual unless doing so would impose an "undue hardship" on
the employer. Reasonable accommodations may include the modifica-
tion of physical facilities, equipment, and work schedules. A
potential accommodation is considered an undue hardship if it
imposes a significant difficulty or expense on the employer.
Under the ADA, employers are prohibited from using qualification
standards, employment tests, and selection criteria that would
tend to screen out individuals with disabilities, unless the
standard is job related.
The term "qualified individual with a disability" means an indi-
vidual with a disability who, with or without reasonable accommo-
dation, can perform the essential functions of the employment
position that such individual holds or desires. For the purposes
of this title, consideration shall be given to the employer's
judgment as to what functions of a job are essential, and if an
employer has prepared a written description before advertising or
interviewing an applicant for the job, this description shall be
considered evidence of the essential functions of the job.
The prohibitation against discrimination includes medical examina-
tions and inquiries. The ADA allows pre-employment inquiries into
the ability of an applicant to perform job-related functions.
- 4 -
(mem/physical)
• *
411 The ADA also allows a covered entity to require a medical examina-!
tion after an offer of employment has been made to a job applicant,
and prior to the commencement of the employment duties of such
applicant, and may condition an offer of employment on the results
of such examination, if (A) All entering employee are subjected to
such an examination regardless of disability; (B) The information
obtained regarding the medical condition or history of the appli-
cant is collected and maintained on separate forms and in separate
medical files and is treated as a confidential medical record,
except that -- (i) Supervisors and managers may be informed re-
garding necessary restrictions on the work or duties of the em-
ployee and necessary accommodations; (ii) First aid and safety
personnel may be `nformed, when appropriate, if the disability
might require emergency treatment; and (iii) -Governmental' offi-
cials investigating compliance with this act shall be provided
relevant information on request; and (C) The results of such
examination are used only in accordance with the Americans with
Disabilities Act.
s
a
The ADA specifically requires that, "a covered entity shall not
require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a
disability whereas to the nature or severity of the disability,
unless such examination or inquiry is shown to be job related and
consistent with business necessity.
The ADA allows an employer to conduct voluntary medical examina-
tions, including voluntary medical histories, which are part of an
employee health program available to employees at the work site.
An employer may make inquiries into the ability of an employee to
perform job-related functions. However, the information obtained
regarding the medical condition or history of an employee are
subject to requirement of Subparagraph (B) and (C) of the para-
graph above.
Other than is mentioned above, the covered entity is prohibited
from conducting medical examination or making inquiries of a job
applicant as to whether such applicant is an individual with a
disability or as to the nature or severity of such disability.
Under the ADA it may be a defense to a charge of discrimination1�
that an alleged application of qualified standards, tasks, or
selection criteria that screen out or tend to screen out or other-
wise deny a job or benefit to an individual with a disability has
been shown to be job related and consistent with business necessi-
ty, and such performance cannot be accomplished by reasonable
accommodation, as required under this title.
LABOR LAW
If the requirement for physical examination were imposed on ex-
isting employees, that condition would need to be bargained.
However, if the condition applied only to new applicants that are
(mem/physical)
- 5 -
• •
not current employees, the case could be made that this require-
ment would not be a subject of bargaining. If it were possible to
get the union to agree to this point, that of course would be the
easiest solution to the problem. If not, an attempt to create a 411
waiver should be made. For a more detailed discussion regarding
whether pre-employment physical examination require bargaining
prior to implementation, see attached memo from Sharon Carberry
dated 1/4/89 and from myself dated August 24, 1989.
JT/las
c: 4heryl Smith
6
(mem/physical)
1