4 FEBRUARY, 1997
OLDER WORKER BULLETIN 97-34
ALL SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM
Physical Examinations, Enrollees with Disabilities, and
1. PurposeThe purpose of this bulletin is to provide additional written information on questions about medical exams, disabilities and related topics. It is also intended to emphasize the importance of encouraging annual medical examinations for program participants.
2. Reference The SCSEP regulations, at 20 CFR Sections 641.309(b) and 641.311(b)(3); section 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act (ADA) of 1990; and their implementing regulations.
3. Background A number of questions have been generated by the May 17, 1995 SCSEP regulation regarding physical examinations and disabilities. Our experience since issuing the regulations indicates that additional information would be helpful. Moreover, it appears that many enrollees are no longer taking advantage of the physical examination program benefit.
A common medical recommendation for people over the age of 50 is that they receive an annual physical exam. Physicals can identify serious medical problems. Recently, after physical exams, several enrollees at a project were found to have been exposed to tuberculosis. As a result of these exams, these people were able to get appropriate medical attention. The provision of free physical examinations has been a long-standing SCSEP program benefit that has been utilized by hundreds of thousands of SCSEP participants. Unfortunately, implementation of the 1995 regulations has resulted in fewer enrollees taking advantage of this benefit.
4. Policy.Each SCSEP enrollee must be offered a physical exam upon entrance into the program, and at least annually thereafter. It is the policy of the Employment and Training Administration to actively promote this program benefit for each enrollee. Widespread failure by projects to encourage exams through non-coercive measures may be considered a program deficiency. Documentation of waivers by enrollees of their rights to physical exams are of considerably lesser importance than are records maintained by the project showing that the enrollees have had annual medical exams.
5. Purpose of Physical Examinations.Examinations should not be arranged for the purpose of determining whether an enrollee is "fit to work." Concerns about the expenses of workers' compensation or other liability claims should not be a programmatic matter (although they clearly do constitute a managerial consideration). Physicals should be viewed as a benefit associated with SCSEP program participation; they can be useful in helping participants make informed judgements about their ability to perform certain work assignments, and in providing them with information on their general health.
6. Arranging Physicals.Examinations need not be financed through the SCSEP. If enrollees have health insurance, including Medicare or Medicaid, and a preferred private physician, it is acceptable for annual physicals to be conducted in that manner. Some local projects arrange for physicals in conjunction with the local Public Health Service, which is also used as a host agency worksite. One national sponsor arranges medical examinations as part of the intake process; at the conclusion of the enrollment interview, the individual is told the time, date and place of the appointment. They are asked to keep that appointment unless it is necessary to reschedule.
7. Action SCSEP sponsors should review the attached Questions and Answers, and share copies with appropriate staff. It may be necessary for some sponsors to remind their staff and sub-projects of the importance of the medical exam. Appropriate staff and sub-projects should be advised of low-cost ways to arrange physical exams, e.g. working with the Public Health Service, free clinics, and other sources of medical examinations. If through their own efforts enrollees obtain medical exams or have just had one, this will meet the regulatory requirement. When monitoring local projects, sponsors are encouraged to review the proportion of enrollees who are receiving physical examinations arranged by the project.
The attached information should answer many questions of project sponsors and result in greater enrollee use of the free medical examination program benefit.
8. Inquiries Questions may be directed to your Federal Representative at (202) 219-5904.
9. Attachments Questions and Answers.
ERICH W. ("RIC") LARISCH ANNA W. GODDARD
Division of Older Worker Programs Office of National Programs
QUESTIONS AND ANSWERS
Q1: Before offering an SCSEP applicant a program position, is it permissible to request that the individual provide a doctor=s release to work, particularly if the individual:
- Receives Social Security Disability Insurance (SSDI);
- Has an obvious disability;
- Receives any other disability payments from another source; or
- Appears frail or has indicated he or she has a health problem.
A1: No. The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (referenced in each grantee=s or sub-grantee=s grant agreement) prohibits making medical inquiries (including medical examinations) before an offer of employment has been made. Prior to offering a SCSEP position (the pre-offer stage), medical inquiries are prohibited. This pre-offer stage should be focused primarily on determining eligibility.
Q2: Once an SCSEP applicant is enrolled, may a medical inquiry be made?
A2: After the applicant is enrolled (on the payroll) and a suitable assignment is being developed (i.e., post-offer stage), job-related medical inquiries are permissible to assist in matching the participant (enrollee) with an assignment. The medical inquiry should focus on the ability to perform essential job-related functions; avoid general questions such as AHow is your health?@. Avoid misinterpretations by clearly explaining to the participant that the medical inquiry is made to assist in developing a suitable community service training assignment.
If post-offer medical inquiries are made, they should be made of everyone. For example, a grantee may ask all participants if they have recently been under a doctor=s care. The follow-up question of ADo you have a doctor=s release?@ can then be asked of those individuals who answered Ayes@ to the first question. Do not limit the inquiry to persons who appear to have a disability or medical problem. Judgments made based on appearances can lead to the perception that discriminatory assumptions are being made.
Q3: After an applicant has been determined eligible and a tentative assignment has been made, may the enrollee be asked to take a physical examination if everyone performing that assignment must take a physical? For example, a hospital may require all food service workers to undergo a physical.
A3: Yes, if required of others in that position.
Q4: Under the ADA, may an SCSEP grantee or sub-grantee require an enrollee to provide a Areturn to work@ release from a treating physician or other qualified medical practitioner if the enrollee has been out sick for several days?
A4: Yes. An SCSEP grantee or sub-grantee may establish a leave policy that is applied uniformly to all enrollees. The policy may include the requirement that an enrollee provide a doctor=s release before returning to his or her community service assignment.
Q5: Is it consistent to require a return-to-work release from an enrollee when the SCSEP project cannot require a physical exam?
A5: Once an applicant (pre-offer) becomes an enrollee (post-offer), the SCSEP project may require a physical exam in accordance with the requirements of the Rehabilitation Act and the ADA at 29 CFR Section 32.15. The requirement to provide a Areturn-to-work@ release is also permissible in the post-offer stage of SCSEP participation provided the requirement is uniformly applied to all enrollees. The ADA and Section 504 of the Rehabilitation Act prohibit pre-offer physical examinations.
Please note that it would be inappropriate to require a returning enrollee to provide a Areturn-to-work@ release if he or she has been absent from the program for such a long period of time as to be considered a new applicant. In other words, the enrollee had been terminated from the program and is not returning to his or her community service assignment. In such an instance, the status is that the former enrollee is an applicant in the pre-offer stage.
Q6: May an SCSEP project require an enrollee to have a medical exam if the enrollee exhibits performance problems, even if the enrollee has not been absent for health reasons?
A6: An enrollee may be required to take a physical or mental examination when it appears that the enrollee is having performance problems on the job. To avoid misunderstandings, however, the examination should be required only after discussions with the enrollee (and his or her supervisor, if appropriate). The discussions should focus on identifying the cause of the performance problem. The SCSEP project and the enrollee should try to resolve the performance problem. Do not assume that the problem is the result of a disability; however, if a medical exam reveals that a disability is the cause of the performance problem, the project should work with the enrollee to determine whether a reasonable accommodation can be made. Funds budgeted for supportive services (other enrollee costs) may be used to assist in making reasonable accommodations.
Q7: Are the terms Ahandicapped@ and Adisabled@ synonymous?
A7: Yes. Current convention refers to Aindividuals with disabilities@ to move the emphasis from the disability to the individual.
Q8: What is the definition of Ahandicapped@ or Adisabled@ as reported on the QPR?
A8: An enrollee may be considered Adisabled@ for reporting purposes if they identify themselves as having a substantial physical or mental impairment which is a barrier to their employment (i.e., a major life activity). For example, an individual who currently wears glasses to correct near-sightedness is not disabled, but a person whose sight is deteriorating to the extent that they are deemed blind would be. Self-certification of a disability will generally be considered adequate documentation verifying the disability.
Q9: Is self-certification of a disability acceptable for intake and reporting purposes even if that person is not claiming a disability for income eligibility purposes?
A9: Yes. If an individual claims income eligibility as a result of being a disabled Afamily of one,@ however, self-certification is not sufficient; additional documentation is necessary. Merely being a member of a family that includes a disabled person is not adequate to be considered a family of one.
Q10: Please list acceptable sources of documentation of disabled status for income eligibility purposes.
A10: Acceptable sources of documentation include but are not limited to the following:
- Social Security Administration disability records;
- Department of Veterans Affairs (or Veterans Administration) record or letter;
- Statement of a qualified medical practitioner;
- Workers= compensation determination;
- Vocational Rehabilitation record or letter;
- Rehabilitation evaluation;
- Sheltered workshop certification; or
- Statement from a drug or alcohol rehabilitation agency or program.
Q11: When Social Security Disability Insurance is converted to regular Social Security insurance at age 65, must documentation be maintained of that person=s earlier status, thereby establishing that individual=s eligibility as a disabled family of one?
A11: Maintaining documentation of disability for purposes of verifying eligibility is recommended.
Q12: Is a disabled person automatically SCSEP eligible?
A12: No. The person may be considered a family of one for income eligibility purposes, but his or her income must still meet the income eligibility criteria. Status as a Adisabled family of one@ should be considered when it would be advantageous to the applicant. However, there may be circumstances, when it would be more advantageous for the applicant to be considered a family of two or more, and that would be permissable (e.g., individual with a disability has income that would make the individual ineligible as a family of one, but total family income for a family of two or more would make the individual eliglible if considered as a member of a larger family).
Q13: Suppose the project learns that an enrollee has a potentially fatal heart condition that can be aggravated by his or her SCSEP participation. May that enrollee be terminated?
A13: No, not for having a heart condition. Termination may violate the ADA. The project director should re-evaluate the enrollee=s assignment to ensure that the assignment does not pose a danger to the enrollee or others. In addition, the project director should discuss with the enrollee any potential hazards that the assignment may pose. A reassignment may be appropriate.
Q14: What is meant by the term Areasonable accommodation@?
A14: AReasonable accommodation@ refers to making existing facilities or services accessible to persons with disabilities. For SCSEP participants, a reasonable accommodation will typically involve the structure or content of a community service assignment. Reasonable accommodation may also involve access to intake services or training opportunities. Examples of reasonable accommodations include providing sign language interpreters or participant handbooks in Braille, moving intake services to first-floor offices when ramps or elevators are not available, rescheduling community service assignments to allow an enrollee to attend afternoon therapy sessions, etc. Whether an accommodation is reasonable depends on the particular circumstances of each situation. It is a good practice to discuss potential accommodations with the enrollee.
SCSEP funds may be used to provide physical and programmatic accessibility and reasonable accommodation, pursuant to the SCSEP regulations at 20 CFR Section 641.403(d)(4). Generally, such costs should be charged to the Aother enrollee costs@ cost category.
Q15: What constitutes an Aundue hardship@ that would prevent a grantee or host agency from making an accommodation for a participant with a disability?
A15: Whether an undue hardship will result from a particular accommodation depends on the particular circumstances. Factors to consider are the costs of the accommodation, the financial resources of the organization, the impact on other employees, the level of difficulty (time, technical expertise, etc.) involved in implementing the accommodation, any disruption to the organization=s activities, and options available for other accommodations. For example, installing an elevator to the second floor may cause an undue hardship on a host agency; however, setting up a first floor office in which the enrollee can work may not be.
Q16: Who is responsible for making the accommodation, the host agency or the subgrantee/subproject?
A16: It depends on what accommodation is needed. Most host agencies are covered by the ADA. Generally, accommodations requiring building or equipment modifications will be the responsibility of the host agency. Accommodations requiring modification to the community service assignment (i.e., duties, hours, etc.) may be jointly shared with the host agency.
Local SCSEP projects are encouraged to coordinate efforts with other community organizations that assist in developing reasonable accommodations, sometimes at no charge. Vocational Rehabilitation agencies may be helpful. The SCSEP project should be an advocate for the enrollee. Identifying barriers to the enrollee=s employment and implementing ways to overcome those barriers should be part of the Individual Development Plan.
Q17: May an enrollee be asked if he or she has a disability for reporting purposes?
Q18: May a local project require every enrollee to sign a waiver of the physical examination?
A18: The physical examination is intended to be a benefit of participation in the SCSEP, not a requirement. Grantees should encourage enrollees to take advantage of this benefit. A project has up to 60 working days after enrollment to obtain a physical examination for each enrollee; therefore, mass waivers should not be necessary. Grantees are encouraged to evaluate approaches to making the benefit attractive to enrollees. In the few cases when an enrollee chooses not to have the SCSEP-provided physical, he or she should sign a waiver form.
Q19: May an enrollee be terminated for refusing the physical examination and not signing the waiver within the 60-day period?
A19: No, the physical examination is not a requirement of participation in the SCSEP. The project should document that a physical exam was offered and refused but the enrollee would not sign the waiver. If, through their own efforts, enrollees obtain medical exams or have just had one, this meets the intention of the SCSEP regulations.
Q20: When does the 60 working days in which to provide physicals or document refusals begin to run?
A20: At the date of enrollment ( i.e., when placed on the payroll).
Q21: May a project require an applicant to sign an agreement to give the project a copy of the physical examination?
A21: No. The grantee may encourage the enrollee to voluntarily provide a copy of the exam in order to assist in developing a suitable community service assignment. If the enrollee does provide a copy of the exam, it should be maintained in a separate secured file.
Q22: Should the participant intake form indicate the date the physical exam was offered?
A22: Participant files must show when the physical exam was offered. Each grantee may establish its own procedures to ensure documentation; it need not necessarily be the intake form.
Q23: Aren't we at greater risk of liability and higher workers' compensation claims as a result of the implementation of this new policy?
A23: There may be an increased risk, but there is no objective data to support this hypothesis. Anecdotal comments suggest that the types of physical examinations conducted prior to this new policy were not detailed enough to limit any perceived liability.
Q24: Should evidence of a physical exam that was conducted in 1995 or earlier be retained for the files?
A24: Generally, there is no reason to keep these earlier examination records.
Q25: Should information about an enrollee=s disability or the results of a non-job-required physical examination be disclosed to a host agency or employer?
A25: Generally, information about an enrollee=s disability may not be shared with a host agency. Disability and other medical information should be limited to:
- Employing officials when the physical is required for the job classification (e.g. food service worker, child or elder care, etc.);
- Supervisors and managers who have a need to know in order to make decisions regarding necessary accommodations;
- First aid and safety personnel, when appropriate, to assist in providing emergency treatment; and
- Government officials to assist in investigating Section 504 compliance.
- A good practice is to consult with host agencies in advance about any health restrictions or requirements they have so that the inquiry is not tied to a specific enrollee.
Q26: What are Federal guidelines on confidentiality?
A26: A grantee or subgrantee may not share with a potential host agency information about an individual=s disability. For example, a local project staff person telephones a host agency in an effort to place an enrollee. During the conversation, the staff person explains that the enrollee in question has multiple sclerosis and asks the host agency if they would be willing to take such an enrollee. This and any similar practice are strictly forbidden by section 504 and the ADA.
It is also unlawful for a host agency, upon finding that an enrollee has a disability, to refuse that enrollee because of the disability. Federal guidelines specifically prohibit a recipient from contracting with an agency that discriminates. If such an incident were to occur, the recipient would be expected to no longer contract with the agency until the agency agreed to no longer discriminate.
In addition, the following confidentiality principle applies to medical information --It should be collected and maintained on separate forms and filed separately. If there are old medical records in an enrollee file, they should be removed and placed into a separate file.