EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Individualized Assessment --- Reasonable Accommodation --- U.S. DOT Navigation and Vessel Inspection Circular
November 22, 2006
Mr. Jeffrey G. Lantz
National & International Standards
Assistant Commandant for Prevention
c/o Docket Management Facility
US Department of Transportation
400 7th Street, S.W.
Washington, DC 20590-0001
Re: Medical and Physical Evaluation Guidelines for Merchant Mariner Credentials Docket No. USCG-2006-25080
Dear Mr. Lantz:
We are submitting the following brief comment on behalf of the Equal Employment Opportunity Commission (EEOC or Commission), in response to the notice of availability and request for comment on the draft Navigation and Vessel Inspection Circular (Circular) concerning the medical and physical evaluation guidelines for merchant mariner credentials, 71 Fed. Reg. 56,998 (Sept. 28, 2006). The Circular establishes detailed guidelines for use in determining whether applicants for merchant marine credentials and current credential holders are medically and physically fit for duty. The Commission is the federal agency responsible for enforcement of, among other federal laws, Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), which prohibits employment discrimination against persons with disabilities.
As a general matter, the Circular recognizes the importance of determining on an individualized basis whether an individual is medically or physically qualified to work at sea. The agency’s use of an individualized assessment is consistent with the spirit of the ADA. For example, the Circular makes clear that only a small number of medical or physical conditions are “generally not waiverable” (emphasis added), but adds that when an individual presents one of these conditions, the reviewing authority should consult with the National Maritime Center [NMC] for additional guidance before making a final decision on an individual’s entitlement to credentials. The Circular also adds that “where the applicant does not meet the guidance herein, but is still able to function effectively and perform all regular and emergency duties, [it may be recommended] to the NMC that a waiver be granted.” Draft NVIC No. xx-06, ¶ 5.k at 4.
We have two suggested revisions. First, the Circular should remind maritime employers that they have obligations under the ADA not to discriminate against persons with disabilities and that one of these obligations is to make reasonable accommodations where possible. Specifically, we would suggest that the Circular either include a separate ADA-specific paragraph in the Discussion section that begins on page 3 or add ADA-related language to an existing paragraph. The statement need not be elaborate or long; rather, it need only note that the ADA covers most maritime employers and that the Act prohibits employers from discriminating against qualified individuals with disabilities and requires employers to make reasonable accommodations that would enable qualified individuals with disabilities to perform the essential functions of their job and other ship-board assignments. The statement may add that, under the ADA, an employer would not have to accommodate an individual with a disability if doing so would present a direct threat to the health and safety of the individual or others.1
Second, the Circular provides that “[n]othing in this [Circular] precludes marine employers from establishing more rigorous medical or physical ability standards to promote or ensure the safety of life, property and the marine environment.” Id. ¶ 5.n at 4. Notwithstanding the addition of an ADA statement elsewhere in the Circular, the document should include a statement that whatever “more rigorous” standards an individual employer may establish, the employer retains its ADA nondiscrimination/accommodation obligations as noted above. A similar statement should be added to Enclosures 2 and 3, concerning physical standards and potentially disqualifying medical conditions, which include the same statement of an employer’s right to impose more rigorous standards than otherwise set forth in the Circular.
We hope the foregoing is helpful. If you have any questions, please do not hesitate to call either Carol R. Miaskoff, Assistant Legal Counsel (202 -663-) or Peter S. Gray, Senior Attorney Advisor (202-663-).
Peggy R. Mastroianni
Associate Legal Counsel
1 The notion of “individualized assessment,” which the Circular includes as a prerequisite to a denial of a certification, is central to application of the ADA. Before an employer may use the “direct threat” defense to restrict or bar employment, EEOC regulations provide that the employer must make an “individualized assessment of the employee’s present ability to safely perform the essential functions of the job . . . based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r). EEOC’s regulations further provide that an employer consider the following factors when conducting this “individualized assessment”: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id. If a reasonable accommodation vitiates the direct threat, the defense would not be available; conversely, if the accommodation does not redress the threat, the employee would not be considered a qualified individual with a disability.
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