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Americans With Disabilities Act (ADA; 1990)

Americans With Disabilities Act (ADA; 1990)

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Americans With Disabilities Act (ADA; 1990)

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  1. Americans With Disabilities Act (ADA; 1990) Americans With Disabilities Act Amendments Act (ADAAA; 2008)

  2. Rehabilitation Act of 1973

  3. Less adequate protections (connected to Title VI) and no statutory reference to reasonable accommodation or affirmative action Statutory: Law created by legislative action (e.g., Congress) Regulatory: Rules issued by a regulatory body (e.g., EEOC, DOT) to enforce statutes.

  4. Why The ADA? Because Sec.504 provides weaker protection for Non-Federal entities than Sec. 501 provides for Federal entities. Therefore ADA strengthened and codified regulations in Sec. 504 into the ADA to correct this disparity (e.g., Title VII protections, reasonable accommodation).

  5. Americans With Disabilities Act (ADA; 1990) Americans With Disabilities Amendments Act (ADAAA; 2008) Overall Purpose: To eliminate barriers to employment for the estimated 43 million Americans with disabilities Organizations with 15 or more employees must comply with the Act • The ADA is arguably the most complicated employment • law on the books • Lots of criteria used to define key terms

  6. ADA Basics What Counts as a Disability?

  7. Forming a Prima Facie Case Within the ADA 1) The individual has a disability within the framework of the ADA The person can perform the essential functions of the job in question with or without a reasonable accommodation (if qualified) 3)Must show that a negative employment decision was made because of one’s disability

  8. Are All Individuals Diagnosed With a Diability Covered Under the ADA? No. Limitations must be proven by each individual, NOT how an impairment affects people in general Example: Person A: Diagnosis of depression and is substantially limited in a major life activity Person B: Diagnosis of depression and is NOT substantially limited in a major life activity EEOC Case-By-Case Test: Limitations must be proven by each individual, regardless of how an impairment affects people in general. Thus, if two people are depressed, and the depression is substantially limiting for one but not the other, the substantially limited person is disabled within the meaning of the ADA and the counterpart is not Person A is disabled within the meaning of the ADA and Person B is not

  9. ~ Substantial Limitation ~ 1) Permanence Test (NOT temporary or trivial) EEOC Guidance Indeciding whether an individual is substantially limited in a major life activity, courts should consider the nature and severityof the impairment; the duration or expected durationof the impairment; and the permanent or long term impact, or expected permanent or long term impact, of the impairment ADAAA:A transitoryimpairment is an impairment with an actual or expected duration of 6 months or less. But …..

  10. Summers v. Altarium Institute Corp. (2014) [Permanence Issue] • Background: Summers received serious injuries in October 2011 while taking a commuter train to work (e.g., 2 surgeries to repair bones and tendons in his legs) • Doctors prohibited him from putting weight on his left leg for 6 weeks • Expected to be a minimum of 7 months before he could walk normally Summers emailed company about an accommodation: 1) Take short-term disability 2) part-time work remotely 3) full-time remotely Company did not respond or offer any accommodations; fired Summers (effective date of 12/1/11) Summers filed ADA suit due to being fired and failure to accommodate District Court: Dismissed suit. Temporary condition, year or less, so NOT disabled, and work at home accommodation was unreasonable

  11. Summers v. Altarium Institute Corp. (cont.) Court of Appeals (4th Circuit): “A sufficiently severe temporary impairment may constitute a disability under the ADAAA” • Consistent with EEOC's ADAAA regulations (“effects of an impairment lasting or expected to last fewer that six months can be substantially limiting”) and expansive nature of the ADAAA • EEOC – duration is one factor in determining if impairments are substantially limiting “As used in this Act: “(1) DISABILITY.—The term ‘disability’ means, with respect to an individual— “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; “(B) a record of such an impairment; or “(C) being regarded as having such an impairment (as described in paragraph (3)). “(2) MAJOR LIFE ACTIVITIES.— “(A) IN GENERAL.—For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. “(B) MAJOR BODILY FUNCTIONS.—For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. “(3) REGARDED AS HAVING SUCH AN IMPAIRMENT.—For purposes of paragraph (1)(C): “(A) An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. “(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. An accommodation request – even if it is unreasonable – triggers an interactive process (not part of CA 4 decision – Summers dropped failure to accommodate part of suit)

  12. ~ Substantial Limitation (cont.) ~ 2) Average Person Test (impairment must be greater than that experienced by the average person) • Some Average Person Test Failures: • Fungus allergy (Byrne v. Bd. of Education, 1992) • Inability to life 25 pounds (Williams v. Channel Master, 1996) • Infertility (Krauel v. Iowa Methodist, 1996) • Depression & sexual appetite (Johnson v. NY Medical College, 1997) • Test anxiety (Mcguinnes v. University of New Mexico, 1998) • Breathing/sensitivity to dust and fumes due to pneumonia • (Rinehimer v. Cemcolift, 2002) Penny v. UPS (1997): Although the record clearly indicates that Penny suffers an impairment that affects to some degree his ability to walk, he has NOT adduced sufficient evidence from which a factfinder reasonably could conclude that the nature and severity of his injury significantly restricted his ability to walk as compared with an average person in the general population

  13. Mitigation of Impairments EEOC Non-Mitigation Principle Requires assessment of impairments in the non-corrected state. Thus, impairments such as depression, diabetes, epilepsy, and hypertension should be assessed assuming the individual is NOT medicated, and impairments involving loss of limbs should be assessed without corrective effects of prosthetic devices

  14. 1999 Supreme Court Rulings on Non-Mitigation • Sutton v. UAL • Murphy v. UPS • Albertsons v. Kirkingburg • Supreme Court endorses case-by-case test, but uses it as a major reason for striking down the non-mitigation principle

  15. Sutton v. United Airlines(1999) • UAL policy of 20/100 uncorrected vision exceeds FAA standard • EEOC regulation non-mitigation principle is rejected by Supreme Court • Working, not vision is cited as severely restricted major life activity - however, the twins were already working as pilots • O’Connor challenges the validity of working as a major life activity, but does not strike it down because twins fail the broad range test

  16. O’Connor’s Warning on Working (as a major life activity) Because parties accept …. “major life activities” includes working, we do not determine the validity of the cited regulations. We note, however, that there may be some conceptual difficulty in defining “major life activities” to include work, for its seems “to argue in a circle to say that if one is excluded ... that the exclusion constitutes an impairment, when the question you’re asking is, whether the exclusion itself is by reason of handicap”

  17. Major Mistake by Sutton Twins • They should have claimed seeing, not working as the major life activity in a prong 3 claim. Or as stated by Justice O’Connor: • Petitioners did not make the obvious argument that they are regardeddue to their impairments as substantially limited in the major life activity of seeing. They contend only that respondent mistakenly believes their physical impairments substantially limit them on the major life activity of working.

  18. Murphy v. United Parcel Service (1999) • Murphy is excluded from mechanics job because DOT regulationon high blood pressure precludes him from driving the trucks he services • NO substantial limitation (Prong 1): Blood pressure is normal with medication (i.e., mitigation) • Workingas major life activity is NOT possible because Murphy is eligible for non-driving mechanics jobs • Prong 3 claim is precluded because Murphy is excluded by federal (DOT) regulation, NOT company policy

  19. Murphy’s Mistake • Assumed high BP is a disability as a matter of law- never showed how high BP impacts himself. O’Connor implies a claim that Murphy could have made, but didn't: • Because the question whether petitioner is disabled when taking medication is not before us, we have no occasion here to consider whether petitioner is “disabled” due to limitations that persist despite his medication or the negative side effects of his medication. • Souter makes a similar statement in Kirkingburg (next)

  20. Albertsons v. Kirkingburg (1999) • Kirkingburg excluded by DOT regulationon amblyopia (also known as lazy eye – it’s a vision disorder in which an eye fails to achieve normal visual acuity, even with prescription glasses or contact lenses) --- takes physician’s advice and obtains freshly minted DOT waiver based on his excellent driving record • Prong 1 claim struck down due to excellent driving record (indicates self-mitigation). Also, “significant difference” in viewing the world does not equate to “significant restriction” • DOT waiver is struck down because it is “experimental” • As in Murphy, the prong 3 claim is precluded because exclusion is based on federal regulation, NOT company policy

  21. Kirkingburg’s Mistake • Kirkingburg assumed amblyopia is disability as a matter of law(same as Murphy). Justice Souter states the following: • This is not to suggest that monocular individuals have an onerous burden ... our brief examination of some of the medical literature leaves us sharing the Government’s judgment that people with monocular vision “ordinarily” will meet the Act’s definition of disability. ... We simply hold that the Act requires … [plaintiffs] … to prove ... the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial

  22. Failing The Severity Test(Same fate as Murphy & Kirkingburg) Krocka v. Chicago (2000): While Krocka’s depression may have affected his interactions with others, it does not appear to have impacted his ability to perform the duties of a Chicago police officer. Furthermore ….. When taking Prozac he exhibits no symptoms of depression and is able to perform the duties of the job adequately Spades v. Walnut Ridge (1999): The record shows that Spades took medication and received counseling for his alleged disability of depression. He concedes that resort to medicines and counseling “allow him to function without limitation”. Thus, his depression is corrected and cannot substantially limited a major life activity - a requirement for finding than an individual is disabled within the meaning of the ADA

  23. What are Major Life Activities? • Examples (from ADAAA): • Caring for oneself (e.g., brushing teeth, washing) • Performing manual tasks • Seeing, hearing, eating, sleeping, speaking, communicating • Walking, standing, lifting, bending • Learning, reading, concentrating, thinking • Operation of bodily functions (e.g., immune and digestive systems cell growth, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, reproduction) • Working

  24. Working as Major Life Activity EEOC’s Broad Range Test With respect to the major life activity of working--The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working McKay v. Toyota: McKay, had carpal tunnel syndrome (a valid impairment) But, she failed the broad range test because her educational background qualified her to perform jobs more advanced than the one for which she was excluded

  25. How Do You Know an Individual is Qualified? • An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires • Consideration shall be given to the employer's judgmentas to what functions of a job are essential, and if an employer has prepared a written descriptionbefore advertising or interviewing applicants for the job, this description shall be considered evidence[although not conclusive evidence] of the essential functions of the job • Although the ADA does not require employers to have job descriptions, the best preparation for challenges to essential duties and/or KSAs is to have a well-written job description based on a well-performed job analysis. The job description should specify major duty areas, important job tasks within each duty area, KSAs associated with those job tasks, and a summary of working conditions • Generally, the company must generate afactual basisfor the essential job functions • >>> A job analysis is invaluable in this regard!!!

  26. Qualified Individual (cont.) Can an organization consider health & safety issues in determining whether or not an individual is qualified? Yes. Individuals are unqualified if companies present evidencethat one’s disability poses a “direct threat” to the health and safety of others (and cannot be offset with a reasonable accommodation) The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat-- i.e., a significant risk of substantial harm -- to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation. An employer may notsimply assumethat a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace.

  27. What is a reasonable accommodation? Ones that do NOT impose a direct hardship on an organization Some Key Factors: Cost of accommodations, company resources, nature and structure of organizations • Eight Reasonable Accommodations Codified in the ADA • Accommodation 1: Making facilities available • Accommodation 2: Job restructuring • Accommodation 3: Use of part-time or modified work schedules • Accommodation 4: Reassignment of a disabled person to a • vacant position • Accommodation 5: Using or modifying equipment used to • perform job functions • Accommodation 6: Modifying employment tests, training • materials, and/or work policies • Accommodation 7: Providing readers or interpreters • Accommodation 8: Other similar accommodations

  28. Reasonable Accommodation (cont.) • The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation • Accommodations must be made on an individualbasis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case • If the individual does not requestan accommodation, the employer is NOT obligated to provide one except where an individual's known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obviousto the employer

  29. May an employer ask for documentation to justify reasonable accommodation?Yes. • If the disability and/or the need for accommodation is not obvious: • Employer may ask the individual for reasonable documentationabout his/her disability and functional limitations • Documentation is legitimate regarding the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairmentlimits; and the extent to which the impairment limits the employee's ability to perform the activity or activities • Limitations on documentation: • Employer may require only the documentationthat is neededto establishthat a person has an ADA disability, and that the disability necessitates a reasonable accommodation (e.g., cannot request a person's complete medical records) • Employer can require that documentation on the disability and the functional limitationscome from an appropriate health care or rehabilitation professional

  30. May someone other than the person with a disability request a reasonable accommodation?Yes. Do requests for reasonable accommodations need to be in writing?No. • Examplesof accommodation requests: • An employee tells her supervisor that she is having trouble getting to work at the scheduled time because of medical treatments she is undergoing. • An employee tells his supervisor that he needs 6 weeks off to get treatment for a back problem. • A new employee, who uses a wheelchair, informs her supervisor that her wheelchair does not fit under her office desk.

  31. Is an employer required to provide the reasonable accommodation that the individual wants? NO. The employer may chooseamong reasonable accommodations as long as the chosen accommodation is effective. The employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability. If there are two possible reasonable accommodations, and one costs more or is more burdensome than the other, the employer may choosethe less expensive or burdensome accommodation as long as it is effective (e.g., it would remove a workplace barrier, thereby providing the individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment)

  32. PGA v. Martin (2001) • Brief Facts: Casey Martin has a rare, degenerative circulatory • disorder [Klippel-Trenaunay-Weber Syndrome], that has left • him with a withered right leg. He may eventually face amputation. The disorder makes it extremely difficult and painful for him to walk golf courses • He requested an accommodation of using a golf cart while playing golf • The PGA refused citing that: • Using a golf cart would "fundamentally alter the nature" of the game • Walking is an essential part of the game

  33. PGA v. Martin (cont.) Key Supreme Court Findings: The ADA prohibits the PGA from denying Martin equal access to its tours on the basis of his disability Allowing the use of a cart would NOTsignificantly alter the game, the key aspect of which is shot making, not walking “There is nothing in the Rules of Golf that either forbids the use of carts, or penalizes a player for using a cart. That set of rules, as we have observed, is widely accepted in both the amateur and professional golf world as the rules of the game. The walking rule that is contained in petitioner’s hard cards, based on an optional condition buried in an appendix to the Rules of Golf is not an essential attribute of the game itself.

  34. PGA v. Martin (2001) • The NCAA waived its walking rule for Martin • Carts are allowed for the first 2 rounds of the PGA Tour qualifying (Q) school • Until 1997, carts were allowed in the third stage of the Q-School • PGA Champions Tour (those 50 & over) allows the optional use of carts Even if petitioner’s factual predicate is accepted, its legal position is fatally flawed because its refusal to consider Martin’s personal circumstances in deciding whether to accommodate his disability runs counter to the ADA’s requirement that an individualized inquiry be conducted.

  35. Some (misinformed) Reactions "What next?" asked a as quoted by Cybercast News Service: "Stilts for midgets who want to play professional basketball? How about rowboats for Olympic swimmers who suffer from aquaphobia? How about a 20-yard head start for slow people in the Olympic 100-yard dash? ---Spokesperson for the Libertarian Party Hal Sutton, a golfer who also is a member of the tour's policy board, said many pros have bad backs and might now apply to use a cart. Sutton himself has had back problems. Jack Nicklaus took issue with the justices' opinion that walking was not a fundamental part of the sport."I think we ought to take them all out and play golf," Nicklaus said. "I think they'd change their minds. I promise you, it's fundamental."

  36. Do companies have to accommodate disabilities whether they knew or should have known about their existence? • No. Companies only have to accommodate "known" disabilities (flexible interaction requirement) • Some disabilities are obvious (e.g., loss of a limb, person in a wheelchair) • Cannot ask if an applicant has a disability. Can ask people to indicate whether they are a “disabled veteran” if the information is being requested for affirmative action. See EEOC site regarding the ADA and veterans sections 3 & 4 (Click here) • Can ask applicants if they can perform essential, job-related functions and/or to perform essential job duties • Voluntary requests pursuant to affirmative action purposes are allowed

  37. OFCCP Voluntary Self-Identification of Disability Form

  38. Voluntary Self-Identification of A Disability • May an employer ask applicants to "self-identify" as individuals with disabilities for purposes of the employer's affirmative action program? YES: 1) If employer is complying with a federal, state, or local law that requires affirmative action for individuals with disabilities; or 2) Employer is voluntarily using the information to benefit individuals with disabilities • Are there any special steps an employer should take if it asks applicants to "self-identify" for purposes of the employer's affirmative action program? YES: 1) Employers must state clearly on any written questionnaire (or orally) that the information is used solely for its affirmative action obligations or efforts and; 2) State clearly that the information is being requested on a voluntarybasis, that it will be kept confidentialin accordance with the ADA 3) Refusal to self-identify will NOT subject the applicant to any adverse treatment

  39. Organizations are NotRequired to: • Reallocate essential job duties • Create a new position [There is noobligation to find a positionfor an applicant who is not qualified for the position sought] • Lower production/quality performance standards • [Employers are not required to lower quality or quantity standards as an accommodation] • Allow work at home (attendance often ruled as essential) • Give applicants their preferred accommodation

  40. Recommendations for the Flexible Interactive Process • Creation of an open climate of communication that encourages dialog* • Identify and record the essential functions of jobs (e.g., a job analysis) • Documentation of ADA-related communication between employees and company • (including final accommodation decision) • Development of a written accommodation request form • Supervisor training (e.g., on ADA , communication style, conflict resolution) • Guarantee privacy of employee’s disability and disability-related requests • Individualized assessment of employee’s disability limitations by the company; • establish relationships with outside agencies to identify accommodation options • Consideration of employee’s preference(s) regarding accommodations

  41. Current Use vs. Rehabilitation • Rehabilitationimplies prior addiction; casual drug use is not protected • Current use refers to the illegal use of drugs that has occurred “recently enough to indicate that the individual is actively engaged in such conduct” • ADA -- not used drugs for a substantial amount of time • EEOC -- illegal drug use that has occurred recently • enough to indicate the individual is actively • engaged in such conduct • Salley v. Circuit City (1997) ― 3 weeks • McDaniel v. Mississippi Baptist (1995) ― 6 weeks • Collings v. Longview (1995) ― several months

  42. Drug Use, Alcoholism and the ADA • While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently abuses alcohol is NOT automatically denied protection • An alcoholic is a person with a disability and is protected by the ADA if s/he is qualifiedto perform the essentialfunctionsof the job. An employer may be required to provide an accommodation to an alcoholic • But: Employers can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct

  43. Direct Threat • Direct threat -- a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation • ADA generalizes direct threat beyond infectious diseases. It applies to any protected physical or mental condition

  44. Bragdon v. Abbott (1998) Can a doctor refuse care or alter treatment of a patient with HIV? Brief Facts: Bragdon refused to fill a cavity in his office after Abbott informed him that she was positive for HIV. He offered to perform the procedure at a hospital for no extra charge, other than ones associated with use of the hospital facility Key Supreme Court Findings: Abbott qualified as having a disability since she was significantly limited with respect to the major life activity of reproduction The ADA bans discrimination against individual "on the basis of disability in the enjoyment of the services of any place of public accommodation by any person who operates [such] a place." The ADA does not require treating those who pose a direct threat to the health or safety of others No. In a 5-to-4 opinion, the Court held that although the ADA does not force care-givers to treat an "individual [who] poses a direct threat to the health or safety of others," it also . Having said this, however, the Court concluded that only care-givers can determine if treating an HIV-positive individual would constitute a "direct threat" to themselves or others. Therefore, the Court remanded for further risk assessment based on objective medical evidence or risk.

  45. Bragdon v. Abbott (cont.) Direct Threat to Safety: The Court decided that individuals in the health-care profession were in the best position to decide on whether treating an HIV positive person poses a "direct threat" to themselves or others. Plaintiff presented insufficient evidence that sufficient risk existed by treating Abbott in dentist office versus hospital setting. Court of Appeals relied on 1993 CDC Dentistry Guidelines and the 1991 American Dental Association Policy on HIV (e.g., procedures to reduce the transmission of disease in dental environment); but these are recommendations not a risk assessment Case was remanded for additional risk assessment based on objective medical evidence or risk Gave CA opportunity to determine whether some of the studies and data cited by Bragdon (e.g., CDC report that 7 dental workers were exposed to HIV but unsure as to transmission) would change its conclusion that petitioner presented neither objective evidence nor a triable issue of fact on the question of risk.

  46. HIV and AIDS and the ADA • Persons with HIV disease, both symptomatic and asyptomatic, have physical impairments that substantially limit one or more major life activities, and are protected under the ADA • If an employee does not want to disclose that he or she has HIV or AIDS, it may be sufficient for the employee to say that he or she has an illness or disability covered by the ADA, that the illness of disability may cause certain problems at work, and that the employee wants reasonable accommodation [An employer can require medical documentation of the employee’s disability and the limitations resulting from that disability] • Employers cannot choose to hire a qualified person because they fear the worker will become too ill to work in the future. The hiring decision must be based on how well the individual can perform the job at the present time

  47. School Board of Nassau County v. Arline (1987) • [Direct Threat] • Arline was discharged after a relapse of tuberculosis • Justice Brennan: Ruled that individuals are notqualified if an infectious disease poses a significant risk that cannot be reasonably accommodated. Brennan defined significant risk using four prongs 1) Nature of the risk―how a disease is transmitted 2) Duration of the risk 3) Nature and severity of potential harm to others 4) Probability of transmission―imminence of potential harm • ADA Interpretive Guidelines use the same four prongs • Determination of direct threat must be made on a case-by-case basis

  48. Direct Threat • Echazabal v. Chevron (2002) • Chevron refused to hire Echazabal based on a medical exam that showed liver damage • Chevron claimed this condition would worsen with exposure to chemicals in the plant • Supreme Court ruled in favor of Chevron • No direct language in ADA regarding threat to self, however it is now upheld

  49. Medical examinations & inquiries about disabilities May not require a job applicant to take a medical examination beforemaking a job offer (post-offer is okay) MMPI and the ADA Karraker v. Rent-A-Center, Inc. 411 F, 3rd 831 (7th Cir. 2005) The MMPI fits the definition of a “medical examination” --- a “procedure or test that seeks information about an individual’s physical or mental impairments or health.” They held that the MMPI was designed to reveal mental impairments/disorders --- thus it was a violation of the ADA

  50. Medical examinations & inquiries (cont.) If an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be: • Job-related and consistent with business necessity • The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship • Tests for illegal use of drugsare notmedical examinations • Neither are physical ability/agility tests. But, tests that measure physical capacity (e.g., heart rate, blood pressure, max. VO2, etc.) are not allowed in pre-offer stage – considered as medical tests