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Disability Nondiscrimination Regulations

Occupational Safety and Health and Disability Nondiscrimination in the Workplace: Complying with Dual Requirements

Revised Date: 2010
Original Date: 2002
Authorship History: It was written in June, 2002 by Susanne M. Bruyere, and updated in December 2010 by Elizabeth Reiter, an independent legal consultant, Ithaca, N.Y., with assistance from Sara Furguson, a Cornell University Employment and Disability Institute ILR student research assistant.
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Why should HR professionals be informed about the intersection of disability nondiscrimination laws and health and safety requirements in the workplace?

Human resource professionals often have responsibilities for implementing the requirements of state and federal legislation, including disability nondiscrimi­nation and health and safety laws. Sometimes the interaction of different legal requirements can be confusing. In a random sample survey of the membership of the Society for Human Resource Management (SHRM) conducted in 1998 by Cornell University,1 respondents indicated that they were frequently or occa­sionally uncertain of selected areas where the Americans with Disabilities Act of 1990 (ADA) and the Occupational Safety and Health Act of 1970 (OSH Act) intersect. For example, approximately one-half of the respondents expressed uncertainty about whether OSHA regulations supersede the confidentiality requirements of the ADA. Other areas of uncertainty included whether worksite modifications or ergonomic changes constitute reasonable accommodation (46% of respondents), and whether it is permissible to discipline an employee who is a risk to self or others (40%).

The following discussion will provide an over­view of the employment sections of the ADA, the requirements of the OSH Act, a discussion of key areas where these laws intersect, and resources for future reference. Staying current on agency guidance and emerging case law in these areas will further assist the HR profes­sional in helping businesses resolve questions involving workplace safety and the rights of employees with disabilities.

1 An Executive Summary of this report is available from the Cornell University web site /www.

What does Title I of the ADA require?

Title I of the ADA protects individuals with disabilities from employment discrimination on the basis of disability. The U.S. Equal Em­ployment Opportunity Commission (EEOC) enforces Title I protections, which apply to the entire employment relationship, including the application process, hiring, training, promo­tion, termination, compensation, and other benefits and privileges of employment, such as health and retirement benefits and employer-sponsored social functions.

The ADA requires employers to provide nec­essary reasonable accommodations for quali­fied individuals with disabilities. Potential reasonable accommodations include making existing facilities accessible, restructuring jobs, allowing part-time or modified work sched­ules, providing assistive technology, provid­ing aides or qualified interpreters, modifying tests or policies, and reassigning the qualified individual to a vacant position. Generally, the individual with a disability must inform the employer that an accommodation is needed.

The employer should confer with the employ­ee about what accommodations would enable him/her to perform the essential functions of the position. When no accommodation is readily identified or when alternative options are desired, technical assistance may be help­ful in determining how to accommodate an employee in a specific situation. If the indi­vidual cannot perform an essential function of the job, even with accommodation, then that individual is not considered "a qualified indi­vidual with a disability" under the law and is not protected by the ADA. Furthermore, even if the employee is qualified, he or she will not be protected by the ADA if accommodating him or her would impose an "undue hardship" on the employer’s business. This would also assume that the employer has considered the accommodation of job reassignment but that this approach does not remedy the situation.

What does the Occupational Safety and Health Act require?

The Occupational Safety and Health Adminis­tration’s (OSHA) mission is to prevent work-related injuries, illnesses and deaths. Since the agency was created in 1971, occupational deaths have been cut in half and injuries have declined by 40 percent. Congress created OSHA under the Occupational Safety and Health Act (OSH Act), signed into law on De­cember 29, 1970.

The OSH Act is based on the premise that every worker has a right to a workplace that is free from recognized hazards. When a po­tential hazard is identified, the Occupational Safety and Health Administration (OSHA), which is part of the U.S. Department of Labor, develops a standard against which workplace practices or conditions should be measured. Unlike some other employment regulations, OSHA requirements are applied universally to all employers, regardless of the volume of business they conduct or the number of people in their employ.

After the implementation of a standard, the Labor Department can determine which work­places will be inspected, either by the request of an employee in the particular workplace or at OSHA’s discretion. Inspections are con­ducted with the permission of the employer and in accordance with OSHA guidelines. Violations of a standard are punishable by government-ordered abatement and monetary fines, set according to the size of the business, the seriousness of the violation, the good faith of the employer, and the record of prior viola­tions. Violations that result in the death of an employee are punishable under criminal law.2

Some of the requirements of the OSH Act overlap with provisions of the ADA. The HR professional is likely to encounter questions about the intersection of these laws in the ar­eas of employee testing and screening, confi­dentiality of medical records, and reasonable accommodation.

2 29 U.S.C. Section 666(e).

How do the ADA and OSH Act requirements intersect in the area of employment testing and screening?

Although some employers may wish to use pre-employment physical fitness tests and other exams in order to screen out applicants prone to ergonomic hazard injuries, the ADA limits such testing in order to further its goal of preventing discrimination on the basis of disability. Thus, the ADA requires that when­ever an employer screens out an individual with a disability based upon a test or other qualification standard, the employer must show that: (1) the test or standard is job-re­lated and consistent with business necessity, and (2) the individual with a disability cannot meet such standard by means of reasonable accommodation. In most instances, a risk of future injury won’t satisfy this ADA standard. The ADA also prohibits employers from mak­ing medical inquiries or requiring physicals before a job offer is made, and places restric­tions on post-offer, pre-employment inquiries and exams.3 After the applicant becomes an employee, any medical inquiries and examina­tions must be job-related and consistent with business necessity.

The OSH Act, in contrast, affirmatively re­quires employers to monitor and test employ­ees in a variety of situations to assure safety. For example, employees exposed to high noise levels must be included within an audiometric testing program, which includes among other things, annual hearing tests.4 The ADA’s lim­its on employee and applicant testing might initially appear to conflict with OSHA’s need for testing in furtherance of workplace safety goals. However, the ADA regulations recog­nize that if an employer’s alleged discrimina­tory action was taken in order to comply with another federal law or regulation, the employ­er may assert this as a defense to a charge of discrimination. An applicant or employee can thereafter rebut such defense by showing that compliance with other federal law is simply a pretext for discrimination or that the employer could have complied with the federal standard in a non-discriminatory way.5 HR profession­als should assist in resolving any potential conflicts between the requirements of the ADA and the OSH Act by determining whether the employer can meet the requirements of both laws or whether the ADA’s conflicting federal law defense is applicable.

3 More information on ADA rules and regulations governing employment testing, screening and medical exams can be found in other brochures in this series entitled “Pre-Employment Testing and the ADA,” “Pre- Employment Screening Considerations and the ADA,” and “Employee Medical Exams and Disability-Related Inquiries under the ADA: Guidance for Employers Regarding Current Employees.”
4 See 29 C.F.R. Section 1910.95.
5 29 C.F.R. Section 1630.15(e).

What are the considerations in complying with the ADA’s confidentiality requirements regarding medical records and the OSH Act’s recordkeeping requirements relating to occupational illness and injury?

The ADA requires strict confidentiality of medical records. All information obtained from post-offer medical exams and inquiries must be collected and maintained on sepa­rate forms, in separate medical files and must be treated as a confidential medical record. Employers must take steps to guarantee the security of employee medical information, in­cluding keeping the information in a medical file in a locked cabinet apart from the location of regular personal files. Employers should also designate a specific person or persons who will have access to the medical files. The ADA provides, however, that employers may disclose the records when necessary to: (1) supervisors and managers in regard to work restrictions or necessary accommodations, (2) first aid and safety personnel, (3) government officials investigating the ADA and other dis­ability discrimination laws, (4) state workers’ compensation offices, and (5) insurance com­panies that require a medical exam to provide employees with health or life insurance.

The OSH Act requires employers to keep re­cords of workplace injuries and illnesses and grants OSHA personnel access to such records in the interest of exposing potential hazards and their causes.6 About 1.3 million employ­ers with 11 or more employees – 20 percent of the establishments that OSHA covers – must keep records of work-related injuries and ill­nesses. Workplaces in low-hazard industries such as retail, service, finance, insurance and real estate are exempt from record-keeping requirements.

The OSH Act requires that employers subject to recordkeeping requirements and OSHA compliance personnel who enforce record­keeping requirements maintain the confiden­tiality of medical records. OSHA Forms 300 and 301, which employers must use to report recordable illnesses and injuries, note that employers who use the employee health infor­mation contained in those forms for occupa­tional safety and health purposes must protect employee confidentiality to the fullest extent possible. Likewise, OSHA compliance personnel, who have the authority to examine medi­cal records to verify employer recordkeeping compliance, must perform such examinations on-site and are prohibited from recording and/ or taking off-site any information contained within those records. In addition, OSHA personnel will exercise their authority to gain access to personally identifiable employee medical information only after the agency has made a careful determination of its need for this information, and only with appropriate safeguards to protect individual privacy.7

Overall, the OSHA regulations appear to be concerned about the confidentiality of em­ployee medical information in a manner that is generally consistent with the ADA’s confiden­tiality requirements. HR personnel should guide employers to construe OSHA require­ments in a manner that also complies with the ADA’s confidentiality provisions whenever possible. Clearly, however, OSHA personnel and other individuals designated in the OSHA regulations, including representatives from the National Institute for Occupational Safety and Health (NIOSH), will insist upon access to those medical records they deem vital to their mission.8 While these parties are not listed in the ADA as having access to confidential medical records, the ADA’s conflicting federal law and regulation defense would protect an employer who grants access to OSHA repre­sentatives acting pursuant to federal law.

6 29 C.F.R. Section 1904.
7 29 C.F.R. Section 1913.
8 29 C.F.R. Section 1904.40.

How does the ADA’s reasonable accommodation requirement interact with the OSH Act?

The ADA requires that employers consider reasonably accommodating any employee with a disability so that he or she can perform the essential functions of the job, in accordance with OSH Act requirements. For example, if an audiometric test required by OSHA iden­tifies that an employee has a hearing loss because of exposure to loud equipment, the employer might be tempted to terminate the employee or transfer him or her to another job to prevent continued exposure. The ADA requires, however, that the employer first consider an accommodation (such as sound abatement equipment) that would enable the employee to remain in his or her current posi­tion. If no such accommodation would work, the employer may then consider reassigning the employee.

OSHA regulations may prohibit certain ac­commodations. For instance, OSHA’s respira­tor requirements are clear and specific. Where OSHA regulations require employees to wear respirators on a particular job, an employer would not have to keep an employee who is unable to wear a respirator in a position that requires one as part of a reasonable accom­modation. The ADA would require, however, that the employer consider transferring this employee to an equivalent, vacant position as an alternate accommodation.

What other experts can help the HR professional dealing with OSHA and ADA requirements?

Larger employers may employ their own spe­cialists to assist with health and safety consid­erations and accommodation issues, including health and safety specialists, ergonomists, occupational health specialists, physical thera­pists, and occupational therapists. Smaller employers may hire these services as needed from outside agencies. Knowing which pro­fessionals to call is often the first important step for HR professionals, who will often be assisting supervisors in dealing with these issues. The HR professional will work closely with these service providers in applying and utilizing their advice within the framework of ADA and OSHA requirements.9

For example, orthopedic or musculoskeletal injury, specifically back injury, is the type of disability that has the highest number of claims before the EEOC for alleged disability discrimination under the ADA (approximately 17% of total claims as of FY 2008). HR profes­sionals will often encounter accommodation and health and safety questions about persons with musculoskeletal injuries. Supervisors or HR professionals may want to seek the assis­tance of an ergonomist, physical or occupa­tional therapist, industrial hygienist, or health and safety specialist. Ergonomists integrate knowledge derived from the human sciences to match jobs, systems, products, and environ­ments to the physical and mental abilities and limitations of people.10

An ergonomist uses information about people, for example their size, ability to handle infor­mation and make decisions, ability to see and hear, and ability to work in extreme tem­peratures, to match people to jobs.11 Physical therapists, or PTs, are health care profession­als who evaluate and treat people with health problems resulting from injury or disease. PTs assess joint motion, muscle strength and endurance, function of heart and lungs, and performance of activities required in daily liv­ing.

Occupational therapists (OTs) evaluate and treat individuals with injuries, illnesses, cogni­tive impairments, psychosocial dysfunctions, mental illness, developmental learning disabil­ities, physical disabilities, or other disorders or conditions. Evaluation and intervention by an OT focuses on an individual’s level of function and involves assessment of performance com­ponents, and performance context.

An industrial hygienist plays a role in insuring that the workplace is as free as possible from hazards and that the workers in the communi­ty at large are protected from potential health threats. Some of the areas that industrial hygienists may get involved in include: testing for and possibly removing toxic materials in the work environment; helping to limit dis­abilities caused by repetitive and/prolonged movement, such as typing at a keyboard, or sitting at a desk all day; and setting limits on exposure levels and providing guidelines for control of chemicals, noise, and radiation in the workplace.

Further information about the services pro­vided by and the credentials of these profes­sionals may be gained from the relevant pro­fessional associations, listed in the "Resources" section of this brochure.

The HR professional is also likely to get many questions about mental health disabilities. Employers often express concern that people with certain psychiatric disabilities or a history of treatment may pose a safety concern. Ac­cording to the National Mental Health Associ­ation, "Violent acts committed by persons with mental illness represent a small fraction of the violence perpetrated in our country, yet these acts are frequently highly sensationalized by the media and lead to the continued stigmati­zation of persons with mental illness." 12 Get­ting more information about mental health or psychiatric disabilities in general, and consul­tation on the unique accommodation consid­erations for a particular individual, is impera­tive when there are questions surrounding a mental health disability.13 A mental health professional or employee assistance program (EAP) professional may be of assistance in this situation.

9 See "Workplace Accommodations for Persons with Musculoskeletal Injuries," in this brochure series, for more information.
10 For further information, contact the Human Factors in Ergonomics Society (see Resources).
11 Congress and the President took action in 2000 to rescind the major ergonomics rule that DOL had published at the end of 1999. OSHA is currently developing voluntary guidelines to assist employers in recognizing and controlling hazards.
12 Position Statement adopted by the Board of Directors of the National Mental Health Association on June 13, 1999 regarding "Constitutional Rights and Mental Illness."
13 See the brochure "Employing and Accommodating Workers with Psychiatric Disabilities" for more information.

Moving Forward

HR professionals can play a pivotal role in helping employers to understand and effec­tively navigate the dual requirements of the ADA and OSH Act. By working closely with frontline supervisors and technical experts who deal with health, safety and accommoda­tion issues, HR professionals can assist their organizations in fully complying with OSHA’s health and safety requirements, without need­lessly screening out or discriminating against applicants or employees with disabilities.

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