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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