Return to Home PageThe U.S. Equal Employment Opportunity Commission
November 1, 1996 Barry Kearney Associate General Counsel Division of Advice National Labor Relations Board Washington, D.C. 20570 RE: Case # XXXXXXXXX Dear Mr. Kearney: Pursuant to the Memorandum of Understanding between the Equal Employment Opportunity Commission (EEOC or the Commission) and the National Labor Relations Board's (NLRB) Office of General Counsel, you requested our opinion on the above-referenced case. The charge alleges a violation of the National Labor Relations Act (NLRA) and also raises issues under Title I of the Americans with Disabilities Act (ADA). We have reviewed the "Request for Advice" prepared by the NLRB's Region 19/Seattle Office regarding the case, which asks whether an "Employer can refuse to supply a Union with requested [medical] information needed to process a grievance by raising a defense that it is prohibited from doing so under A.D.A." This case presents the question of how to resolve the potential conflict between the ADA confidentiality requirements pertaining to medical information and a union's right under the NLRA to obtain certain information necessary for collective bargaining. This is an issue of first impression for the EEOC. The Commission believes that the requirements of the ADA and the NLRA can be harmoniously construed and concludes that, as delineated herein, Title I of the ADA permits an employer to give a union, in its role as bargaining unit representative, medical information necessary to the ADA reasonable accommodation process to enable the employer and union to make reasonable accommodation determinations consistent with the ADA. Factual Background According to the facts of the charge as presented in the "Request for Advice," the Union and Employer are parties to a collective bargaining agreement (CBA). The CBA contains provisions regarding seniority rights, including the right of individuals to bid for and receive jobs based on seniority, provided they are qualified to perform the job. On March 15, 1995, the Employer posted two job bids for day shift hardwood veneer sorter at its plywood plant. Approximately twenty employees placed bids for these jobs. One of the two jobs was filled by the most senior qualified bidder. The second job was awarded to employee John Doe as an ADA reasonable accommodation, despite the fact that several qualified bidders had more seniority than Doe. On March 31, 1995, the second most senior bidder for the job taken by John Doe filed a grievance challenging Doe's selection. On April 14, 1995, a second step grievance meeting was held concerning the grievance. The Union took the position that the Employer had violated the contract by awarding the job to Doe "out of seniority." The Employer stated that Doe was awarded the job based upon a medical condition and upon the recommendation of his physician. The Employer further stated that it believed it was required to award Doe the job under the ADA. The Union then responded that the Employer could have accommodated Doe in some other manner. This meeting and a subsequent meeting on June 28, 1995, ended without resolution of the grievance. On July 21, 1995, the Union requested that the Employer provide, as stated in the NLRB's Request for Advice, "the necessary medical information regarding [Doe's] disability so the Union could assess the grievance." After reviewing the collective bargaining agreement and the ADA, the Employer advised the Union that it could not release the requested information under the ADA. The Union filed a charge with the NLRB on September 22, 1995, alleging that the Employer violated sections 8(a)(1) and (5) of the NLRA by refusing to provide the Union with certain information needed to process a pending grievance. Issue Presented Does the ADA permit an employer to provide medical information about an employee's disability to a union in order for the union to assess a grievance challenging the employer's provision of a reasonable accommodation to the employee which conflicts with the seniority provisions of the CBA? Analysis A Union's Reasonable Accommodation Obligation Under the ADA Under Title I of the ADA, it is unlawful discrimination for a "covered entity" not to make reasonable accommodation to known physical or mental limitations of otherwise qualified individuals with disabilities who are applicants or employees, unless there is undue hardship.1 Title I defines "covered entity" to include both employers and labor organizations.2 As such, a union, in its role as designated exclusive bargaining representative of the collective work force, has a reasonable accommodation obligation under the ADA.3 When an employer seeks to provide a reasonable accommodation that conflicts with collectively bargained seniority rules, the Commission's position is that the substance of a union's reasonable accommodation obligation is to negotiate with the employer to provide a variance to the CBA, if no other reasonable accommodation exists and the proposed accommodation does not unduly burden non-disabled workers or otherwise pose an undue hardship.4 To Meet Its ADA Reasonable Accommodation Obligation, a Union May Make Inquiries Necessary to the Reasonable Accommodation Process Title I of the ADA permits a covered entity with a duty to accommodate to make inquiries necessary to the reasonable accommodation process.5 When the need for an accommodation is not obvious, a covered entity may require reasonable documentation of the need for accommodation.6 Documentation may be requested showing that the employee has an ADA-covered disability, and stating the related functional limitations that necessitate the accommodation.7 A union is a covered entity with a reasonable accommodation obligation. Therefore, for the sole purpose of meeting that obligation, a union may make inquiries necessary to the accommodation process. When the need for accommodation is not obvious, a union may request reasonable documentation of the need for accommodation. Medical Information Necessary to the Reasonable Accommodation Process May Be Shared Between an Employer and Union to Meet Their ADA Reasonable Accommodation Obligations to a Particular Individual Commission enforcement guidance on preemployment disability- related questions and medical examinations addresses how medical information may be used, and to whom it may be given, in the context of providing reasonable accommodation in the hiring process.8 Medical information may be used to determine reasonable accommodations for an individual, and may be shared with a third party when necessary to determine whether a reasonable accommodation is possible for an individual. The guidance states more generally that medical information may be given to and used by appropriate decision-makers involved in the hiring process to enable them to make employment decisions consistent with the ADA.9 Medical information may be shared only with individuals involved in the hiring process who have a need to know the information.10 Under these specific circumstances, the confidentiality provisions of Title I of the ADA are not violated. In the unique setting of the unionized workplace, when an employer seeks to provide an accommodation that conflicts with collectively bargained seniority rules, the ADA reasonable accommodation obligation of the employer and of the union, as bargaining representative, are intertwined. The union and employer both participate in making the reasonable accommodation determination regarding a particular individual. It is the Commission's position that, where no other reasonable accommodation exists, the employer and union are jointly obligated to negotiate with each other to provide a variance if it will not impose undue hardship.11 Accordingly, consistent with the Commission's enforcement guidance discussed above, an employer and a union may share with each other and use medical information necessary to enable them to make reasonable accommodation determinations consistent with the ADA.12 When the need for an accommodation is not obvious, an employer and union may share reasonable documentation of the need for accommodation, as described in the previous section.13 Such information may only be shared with individuals with a need to know the information who are decision-makers or necessary consultants regarding the accommodation.14 A Union Is Required to Keep All Medical Information Confidential With limited exceptions,15 Title I of the ADA obligates all covered entities to keep confidential any medical information obtained about applicants or employees.16 Medical information includes specific information about an individual's disability and related functional limitations, as well as general statements that an individual has a disability or that an ADA reasonable accommodation has been provided for a particular individual. A union, as a covered entity, is required to keep any and all medical information confidential in accordance with Title I's confidentiality provisions. The Commission's Approach Harmonizes ADA and NLRA Requirements The Commission is cognizant that, under section 8(a)(5) of the NLRA, an employer's duty to collectively bargain includes providing information to the union upon request that is necessary for the union to effectively carry out its collective bargaining responsibilities, including the processing of grievances.17 Because Title I of the ADA, under the above-stated circumstances, permits an employer to give a union medical information necessary to make reasonable accommodation determinations consistent with the ADA, the potential for conflicting federal requirements is minimized. Application of Analysis to Facts of this Case When the Union requested disability-related information to assess the grievance contesting John Doe's selection for the job, it was acting in its role as collective bargaining representative. Because the grievance challenges the Employer's unilateral provision of a reasonable accommodation that allegedly conflicts with CBA seniority provisions, it necessarily brings into play the Union's and the Employer's ADA reasonable accommodation obligations to the individual with a disability. In handling the grievance, the Union will need to assess the claim for reasonable accommodation. If no alternative effective accommodation exists, the Union must negotiate with the Employer to provide a variance if doing so would not impose undue hardship. Therefore, in this case, to make the reasonable accommodation determination, the ADA permits the Employer to give the Union medical information in the Employer's possession that is necessary to the accommodation process. If the need for accommodation is not obvious, the Employer may share documentation showing that John Doe has an ADA-covered disability, and stating the related functional limitations that necessitate the accommodation. Medical information may only be shared with individuals with a need to know the information who are decision-makers or necessary consultants regarding the accommodation. This letter has been reviewed and approved by the Commission. If you have questions or we can be of further assistance, please contact me at (202) 663-7197 or Peggy R. Mastroianni, Associate Legal Counsel, at (202) 663-4638. Sincerely, Ellen J. Vargyas Legal Counsel 1. 42 U.S.C. §§ 12112(a) and 12112(b)(5)(A); 29 C.F.R. § 1630.9. 2. 42 U.S.C. § 12111(2); 29 C.F.R. § 1630.2. 3. A union may also act in the role of Title I covered employer. When acting as a covered employer, a union has the same ADA rights and responsibilities as any other covered employer. 4. But see Eckles v. Consolidated Rail Corp., No. 95-2856, slip op. (7th Cir. Aug. 14, 1996) (concluding that the ADA does not require reasonable accommodations that violate the collectively bargained, bona fide seniority rights of other employees). 5. 29 C.F.R. pt. 1630 app. § 1630.14(c). 6. 29 C.F.R. pt. 1630 app. § 1630.9; ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations at 6, 20 (October 10, 1995) (hereafter "ADA Enforcement Guidance"). 7. ADA Enforcement Guidance at 6, 20. 8. See ADA Enforcement Guidance at 21-22. 9. Id. at 21. 10. Id. at 22. 11. Ideally, negotiation will occur prior to implementation of the accommodation in order to avoid disputes about the correct course of action. However, as in this case, the interaction may sometimes occur after the fact in the context of a grievance proceeding. 12. The Commission encourages employers to inform the employee with a disability that the reasonable accommodation process may require sharing of certain medical information with union officials on a need-to-know basis. 13. The information an employer may share with a union is strictly limited to that which is necessary for the union to fulfill its role in the accommodation process. Necessary information often will not encompass the entire contents of an employee's medical file. 14. A bargaining unit member who files a grievance challenging the provision of an ADA reasonable accommodation to an individual with a disability is not a decision-maker or necessary consultant regarding the accommodation, and thus may not be given any medical information about the disabled individual. 15. The statute and regulations contain narrow exceptions to the confidentiality requirements that permit disclosure of specific, limited information to certain supervisors and managers, first aid and safety personnel, and government officials investigating compliance with the ADA. See 42 U.S.C. §§ 12112(d)(3)(B) and (C), and 12112(d)(4)(C); 29 C.F.R. § 1630.14. 16. 42 U.S.C. § 12112 (d); 29 C.F.R. § 1630.14. 17. See 29 U.S.C. § 158(a)(5).