PREGNANCY

In its first Guidance Letter, the EEOC explained that pregnancy is not an "impairment" and, therefore, pregnancy does not consititute a disability within the meaning of the ADA. However, complications resulting from pregnancy may qualify as impairments, and may rise to the level of disabilities. The EEOC stated that the denial of disability retirement benefits to individuals with pregnancy-related complications does not implicate the disparate treatment provision of the ADA if the denial is based on pregnancy (as the cause of the disability) rather than on the disability itself.

Notably, a distinction based on pregnancy could implicate Title VII and the Pregnancy Discrimination Act. In general, for purposes of fringe benefits, including retirement plans, the guidelines require treating pregnancy-related temporary disabilities in the same manner as other temporary disabilities, and pregnancy-related long-term disabilities in the same manner as other long-term disabilities. Accordingly, even if an employee may not have a disparate treatment claim under the ADA, she may have one under Title VII or the Pregnancy Discrimination Act.

DISABILITY-RELATED INQUIRIES

In its second Guidance Letter, the EEOC discussed the employer's right to make disability-related inquiries, as well as the employer's right to require a medical release and the employer's responsibility to reasonably accommodate. The EEOC was responding to a letter from an employee who had a seizure on the job. In response to the seizure, the employer requested that the employee's doctor answer a list of fourteen questions concerning the employee's ability to perform his job duties and whether any accommodations may be required. The EEOC explained that an employer may seek "disability-related" information from an employee if the inquiry is "job related and consistent with business necessity." To qualify, the employer must have a reasonable belief that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a "direct threat" due to a medical condition. Notably, questions that focus primarily on the nature and adequacy of treatment rather than the ability to perform job duties safely and effectively are not permitted.

REQUIRING MEDICAL RELEASES

When an employee seeks to return to work following medical leave, an employer may require an employee to undergo a medical examination or answer disability-related questions if it reasonably believes the employee is presently impaired in performing the essential functions of the job, or poses a direct threat because of the medical condition. For example, if the employee's doctor previously provided detailed information showing that the employee may safely and effectively return to work after a seizure, the employer does not have objective evidence sufficient to support a blanket requirement that the employee provide a medical release after each seizure, whether or not the seizure took place while the employee was at work.

REASONABLE ACCOMMODATION

The ADA requires employers to provide reasonable accommodation to the known physical or mental limitations of an employee's disability. When an employee informs an employer, either directly or through a third party, that he has a medical condition requiring a change at work, then the employee has requested "a reasonable accommodation." After receiving a request, an employer should enter into the "interactive process," a discussion with the employee in which the employer may explore: (1) whether the medical condition is a "disability" as defined by the ADA; (2) the nature of the workplace limitations(s); (3) why the requested accommodation is needed; and (4) alternative solutions that would address the limitation(s) and enable the employee to perform their job duties without imposing an "undue hardship" on the employer. It is the employee's job to carefully consider whether the alternative accommodation suggested by the employer would allow them to perform their job. If the alternative accommodation is ineffective, the employee must explain that to the employer.

The EEOC website provides additional guidance: www.eeoc.gov/policy/docs/guidance-inquiries.html.

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