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In the case, EEOC v Oilfield Instrumentation, an oilfield services company was found to be non-compliant with Title I of the ADA. In this case an occupational medical physician conducted a post-offer physical examination of a person following the interview process with Oilfield Instrumentation and receiving a conditional offer of hire to work as a service technician. During the medical examination, the conditional hire revealed that he had Type I insulin-dependent diabetes.

The examining physician working on behalf of Oilfield Instrumentation determined from his initial physical examination that the conditional hire was physically in good shape and that his Type I diabetes appeared to be adequately controlled. Despite these findings, the examining physician expressed concern about the conditional hire’s abilities to work remotely offshore with this medical condition. In response, the conditional hire assured the examining physician that he properly uses an insulin pump and that he has worked safely offshore two years prior as a diabetic. He explained that he took all precautions to ensure his safety. It should also be noted in this case that the conditional hire did not request any form of accommodation to work.

Following the physical examination of the conditional hire in this case, the examining physician contacted the employer with the opinion that that Type I diabetics are fragile and therefore, the conditional hire was not qualified to work safely as a service technician. The conditional hire was then informed by Oilfield Instrumentation that the employment process was being terminated. As such, the conditional offer of hire was withdrawn.

As a consequence of the job offer withdrawal, the conditional hire filed a disability discrimination claim with the EEOC. Subsequent legal action resulted in EEOC ruling that Oilfield Instrumentation did not base its decision to withdraw the job offer properly by avoiding an assessment of conditional hire’s abilities to perform the essential functions of the job. Since the examining physician was aware of the conditional hire’s medical condition and revealed his medical condition to the employer with additional statements regarding concern about his safety to perform his job, the “regarded as disabled” statute of ADA kicked in. EEOC determined that the employer simply revoked the offer on the basis of a broadly-based opinion that Type I insulin-dependent diabetics could not work offshore, regardless of whether the particular diabetic employee could perform the essential functions of his job (with or without reasonable accommodation). In addition, the employer did not conduct any type of interactive accommodation review process to address the concerns of the medical examiner with the conditional hire. This case is still pending.

Title I Infraction Example
This case is just an example of a Title I infraction that employers must learn to avoid. In general, employers must understand the following key issues dealing with ADA’s Title I to avoid EEOC claims of hiring discrimination:

1. Receipt of any information that identifies a medical condition should always be assumed to be covered under the “regarded as disabled” language of the ADA.
2. Any medical examination decision adversely affecting job placement must be job-related, based on the ability to safely perform essential job functions, and therefore, be consistent with business necessity.
3. Essential job functions must be validated and proven to be consistent with business necessity.
4. The employer must conduct interactive accommodation reviews for all employee’s disability-related issues.

As can be gleaned from this case, a person can obviously file an EEOC claim successfully even if he/she does not request an accommodation review. Employers should not be deceived by ADA language that states it’s the employee’s responsibility to request accommodations. This may be true when the employer is not aware of a disability, in particular with vested incumbent employees. However, this standard may not apply to conditional job offers. This issue may be clarified when this case is settled. If the allegation of hiring discrimination is ruled upon and upheld by the court then the issue related to whether or not the conditional new hire requested accommodation may be a mute point. If so, then we must assume once an employer is aware that a conditional new hire has a disability (whether perceived or validated), an interactive accommodation review will be required by the employer independently of any request for same by the conditional new hire. In other words, if this case is upheld by the court, it may support an EEOC position that when an employer denies employment based on a medical condition or impairment of a person involved in the job application and placement process, an interactive accommodation review that addresses the perceived or real disability must be triggered and carried out aggressively by the employer. Stand by for the final outcome of the case and further clarification of this issue.

We Address All Title I Issues
Note: The WorkSaver employee testing process addresses all Title I issues. All WorkSaver tests are based on validated essential functions of the job and maintains strict confidentiality of medical information. WorkSaver assist industry clients in accommodation reviews and offers their clients an interactive accommodation review checklist to follow through on any test recipient that fails a post-offer or RTW WorkSaver examination based on disability, gender, or age. For more information on the WorkSaver fit-for-duty testing process, please visit us at www.worksaversystems.com.