The U.S. Equal Employment Opportunity Commission recently updated its informal guidance regarding application of the Americans with Disabilities Act to job applicants and employees with cancer, epilepsy, diabetes and intellectual disabilities.  The guidance follows an expansion (but not an alteration) of the definition of a “disability” under the ADA, and makes clear the EEOC’s view that applicants and employees with these conditions fall within that definition.  The ADA Amendments Act states that the definition of disability should be interpreted in favor of broad coverage of individuals. 

The EEOC’s “question and answer” guidance separately addresses each condition and covers topics including when an employer may obtain medical information from employees and applicants; examples of reasonable accommodations; handling safety concerns; and actions an employer should take to avoid and address harassment.  Generally, employers cannot ask applicants if they have, or have ever had cancer, epilepsy, diabetes or an intellectual disability.  After making a job offer, the employer may ask health questions and require a physical examination – as long as an exam is required for all applicants for the relevant job or job category.  Employers can ask employees about these conditions as part of a voluntary wellness program.  They cannot inform co-workers of the basis for any accommodation.  

The EEOC guidance is approximately 10 pages long for each condition, and employers should review it in its entirety and consult counsel about any questions or issues.  The guidance related to each condition can be found on the EEOC’s website, under the “Questions and Answers Series” heading.

Jami Suver focuses her practice in the area of labor and employment law.
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