The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

1. SUBJECT: EEOC Enforcement Guidance on the Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms

2. PURPOSE: This enforcement guidance explains how some provisions of Title I of the Americans with Disabilities Act of 1990 apply to staffing firms and their clients.

3. EFFECTIVE DATE: Upon receipt.

4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded.

5. ORIGINATOR: ADA Division, Office of Legal Counsel.

6. INSTRUCTIONS: File after Section 902 of Volume II of the Compliance Manual.

12/22/00                   /s/
Date                    Ida L. Castro
                        Chairwoman

Enforcement Guidance: Application Of The ADA To Contingent Workers Placed By Temporary Agencies And Other Staffing Firms

Table Of Contents

Introduction

Disability-Related Inquiries And Medical Examinations

Reasonable Accommodation And Undue Hardship

Qualification Standards, Employment Tests, And Other Selection Criteria

Introduction

Staffing firms provide "opportunities to build a work history, experience different types of jobs, and increase...employment marketability and earning potential through enhancement of work skills."⁽¹⁾ A recent study suggests that employment through the staffing firm industry can provide "[a] critical means for people with disabilities to move from unemployment to competitive permanent employment."⁽²⁾ Because less than one-third of Americans with severe disabilities are employed,⁽³⁾ the opportunity to enter the workforce and to move to stable, permanent employment through staffing firms should be fully encouraged and facilitated. There is still uncertainty, however, about how some provisions of Title I of the Americans with Disabilities Act of 1990 ( ADA )⁽⁴⁾ apply to staffing firms and their clients.⁽⁵⁾ For this reason, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) has determined that further guidance is necessary to promote full access by people with disabilities to this important source of employment.

This guidance addresses unique ADA issues not addressed in the EEOC's 1997 enforcement guidance on the application of the EEO laws to contingent work arrangements (Contingent Workers Guidance).⁽⁶⁾ For example, the ADA has requirements regarding disability-related inquiries and medical examinations, reasonable accommodation, and qualification standards that screen out individuals on the basis of disability.⁽⁷⁾ The ADA also prohibits an employer from participating in a contractual or other arrangement or relationship that has the effect of subjecting its own qualified applicant or employee with a disability to prohibited discrimination.⁽⁸⁾ This guidance should be used in conjunction with the Contingent Workers Guidance, as well as with other EEOC enforcement guidance on specific ADA topics such as reasonable accommodation and disability-related questions and medical examinations.

Basic staffing firm work arrangements involving temporary employment agencies, contract firms, facilities staffing firms, lease-back firms, and welfare-to-work programs are described in the Contingent Workers Guidance.⁽⁹⁾ The term "staffing firm" is used in this document to describe generically all of these types of work arrangements, although more specific terms are used where necessary for clarity.

The Contingent Workers Guidance discusses several bases on which a staffing firm, its client, or both may be liable for violations of the federal employment discrimination laws.⁽¹⁰⁾ These bases of liability may be summarized as follows:

• A staffing firm or its client that qualifies as an employer of a staffing firm worker⁽¹¹⁾ may be liable for:
  • its own discrimination against the worker; or
  • discrimination by the other entity if it either:
    • participates in the discrimination; or
    • knew or should have known of the discrimination and failed to take corrective action within its control.⁽¹²⁾
• A staffing firm that does not qualify as a worker's employer may still be liable for discrimination if it:
  • interferes with the worker's ADA rights;⁽¹³⁾ or
  • qualifies as an employment agency, in that it refers potential employees to employers or provides employers with the names of potential employees.⁽¹⁴⁾
• Finally, a client that does not qualify as a staffing firm worker's employer still may be liable if it interferes with the worker's ADA rights, except if that client is a federal agency.⁽¹⁵⁾

Disability-Related Inquiries And Medical Examinations

A. In General

Under the ADA, a covered entity, including a staffing firm, may not make disability-related inquiries or require medical examinations before making an offer of employment. A covered entity may do several things before an offer of employment, however, to evaluate whether an applicant is qualified for the job, including asking about an applicant's ability to perform specific job functions; asking about an applicant's non-medical qualifications and skills, such as education, work history, and required certifications and licenses; and asking applicants to describe or demonstrate how they would perform job tasks.

In general, a covered entity may not ask questions on an application or in an interview about whether an applicant will need reasonable accommodation to perform the functions of the job. This is because these questions are likely to elicit information about whether an applicant has a disability. Under certain circumstances, however, a covered entity may ask an applicant whether she or he needs a reasonable accommodation to perform the functions of the job, and if so, what type.⁽¹⁶⁾ These questions are permitted where:

• the covered entity reasonably believes that the applicant will need a reasonable accommodation because of an obvious disability;
• the covered entity reasonably believes that the applicant will need a reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed; or
• an applicant has voluntarily disclosed that s/he needs a reasonable accommodation to perform the job.⁽¹⁷⁾

A covered entity may ask disability-related questions or require medical examinations after it has made an offer of employment and before the applicant begins work duties, if it does so for all entering employees in the same job category, regardless of disability.⁽¹⁸⁾

Disability-related inquiries and medical examinations of employees are permitted only if they are job-related and consistent with business necessity or in other limited circumstances.⁽¹⁹⁾

B. Offer of Employment

Since an employer has considerable latitude in asking disability-related questions or requiring medical examinations after an offer is made, it is critical to determine what constitutes a job offer in the context of staffing firm arrangements.

1. Does a staffing firm's offer to place an individual on its roster for possible consideration in the future for temporary work assignments with its clients constitute an "offer of employment" under the ADA?

   No. None of the factors indicating a relationship of employment⁽²⁰⁾ between an individual and a staffing firm or staffing firm's client exist when the individual is placed on the roster. Typically, a staffing firm and an individual applying for a temporary work assignment with the staffing firm do not intend to create an employer-employee relationship at this stage. The parties merely agree that: (1) the staffing firm will consider the individual for specific work assignments in the future; and (2) the individual will consider accepting assignments in the future depending on his or her availability and the desirability of the assignment.

   Additionally, no job functions or duties are performed until after the staffing firm worker accepts an offer of an assignment with a client. Performance of job functions is implicitly included among the factors that show that a relationship is one of employment. For example, the most critical factor--the staffing firm's and/or client's control over when, where, and how the worker performs work duties--is necessarily absent when no job functions are being performed.

   Example 1: CP applies for work with Jobmart, a temporary employment agency. A Jobmart associate interviews CP to find out about his skills, education, experience, and the types of work assignments he would be willing to accept. The associate informs CP that the agency will contact him when an appropriate assignment becomes available. Jobmart has not made CP an offer of employment, and therefore may not make disability-related inquiries or require medical examinations.

2. What constitutes an offer of employment to a staffing firm worker?

   Generally, the offer occurs when a staffing firm worker is given an assignment with a particular client. After a staffing firm offers an individual an actual work assignment with one of its clients and the individual accepts the offer, the factors indicating an employment relationship are present. Once an individual has been given an assignment with a client, the staffing firm typically pays wages, withholds taxes and social security, and provides benefits and workers' compensation coverage to the individual, while the client typically controls when, where, and how the individual performs work duties.⁽²¹⁾ Therefore, a staffing firm or client violates the ADA if it asks disability-related questions or requires a medical examination of an individual before an assignment to a particular client is made.⁽²²⁾

   Some staffing firms have contracts with numerous clients to provide similar services on a long-term basis, such as janitorial, security, landscaping, etc. Typically, such firms place their own employees, including supervisors, at the clients' work sites and assume full operational responsibility for providing ongoing services. Under such circumstances, an offer of employment may occur prior to the designation of a particular location where work is to be performed, as long as the workers are guaranteed positions somewhere and specific assignments are made soon after the offer.

   Example 2: Clean Sweep is a contract firm that hires workers to perform housekeeping duties at its clients' offices. Clean Sweep assumes full operational responsibility for providing housekeeping services. Because of the high turnover in housekeeping jobs, Clean Sweep knows that each week several positions will become available at its clients' offices, but it often does not know which clients will need workers until a day or two before the assignment is supposed to begin. Clean Sweep tells CP to report to its office on Monday morning at 8 a.m. to be given an assignment. Clean Sweep has made CP an offer of employment.

3. To what extent may a staffing firm or its client make disability-related inquiries or require medical examinations after an offer of employment has been made?

   After a staffing firm offers an applicant an actual work assignment with a client and before his or her duties begin, the staffing firm or client may ask any disability-related questions or require any medical examinations it chooses, as long as it does so for all individuals entering the same job category.⁽²³⁾ Of course, the offer of a work assignment may be conditioned on the results of post-offer disability-related questions and medical examinations.

   Example 3: After CP is interviewed for laboratory technician positions, Tempsmart offers him an assignment with a federal agency's research laboratory. The federal agency requires that all of its laboratory technicians be tested for Hepatitis B and C before starting work. Since an offer of employment has been made to CP, Tempsmart may, consistent with the ADA, require the tests for Hepatitis B and C. The federal agency also may require the tests, consistent with the Rehabilitation Act.

   If, however, a qualified individual is screened out because of a disability, the staffing firm or client must show that the exclusionary criterion is "job-related and consistent with business necessity," and that there was no reasonable accommodation that would have enabled the individual to meet the criterion.⁽²⁴⁾ In addition, if an offer is withdrawn for reasons related to safety, the employer must show that the individual poses a "direct threat."⁽²⁵⁾ (For more information about a staffing firm's or client's use of qualification standards, including the results of medical examinations, that screen out individuals on the basis of disability, see Question 11).

4. If a staffing firm or client requires a medical examination, may it revoke an offer of employment if the results of the examination are not received before the assignment begins?

   Yes. Because the ADA allows an employer to obtain medical information only after an offer of employment (as long as it does so for all entering employees in the same job category), where an applicant is unable to provide requested medical information before an assignment begins, the staffing firm or client may revoke the offer.

   Example 4: Same facts as example 3. The laboratory technician position that CP is offered is scheduled to begin in three days. If CP is unable to provide the results of tests for Hepatitis B and C before then, the offer may be revoked.

   Where possible, staffing firms should notify applicants ahead of time of medical information or examinations needed for certain types of work assignments. This enables applicants to obtain in advance the information needed for specific assignments that may need to be filled on short notice.⁽²⁶⁾

   Example 5: Same facts as example 3, except that Tempsmart notifies CP at the interview that he will have to be tested for Hepatitis B and C before he begins most laboratory technician assignments. A week later, at 3:00 P.M., when the federal agency requests a laboratory technician who can begin work the next morning, Tempsmart offers the assignment to CP and reminds him that the agency requires him to be tested for Hepatitis B and C. Because of Tempsmart's advance notice, CP has already been tested by his own physician. The physician faxes the results to Tempsmart in time for CP to start the next day.

C. Disability-Related Inquiries and Medical Examinations of Employees

5. May a staffing firm or client ask disability-related questions or require a medical examination of a staffing firm worker once s/he is employed (i.e., during the work assignment)?

   Yes, if the questions or examinations are job-related and consistent with business necessity.⁽²⁷⁾ Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat⁽²⁸⁾ due to a medical condition."⁽²⁹⁾ Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious, as well as certain types of periodic medical examinations and monitoring, also may be job-related and consistent with business necessity. Additionally, such questions or examinations of staffing firm workers while they are on a work assignment are permitted if they are required by another Federal law or regulation.⁽³⁰⁾

   The questions or examinations must not exceed the scope of the specific medical condition and its effect on the staffing firm worker's ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat.⁽³¹⁾ Thus, for example, if a staffing firm worker asks for a reasonable accommodation, and the disability and/or the need for accommodation is not obvious, the staffing firm or its client may ask the worker for reasonable documentation of his/her disability and functional limitations.⁽³²⁾ Like any medical information that an employer has about an applicant or employee, information obtained as the result of lawful disability-related inquiries or medical examinations of an employee must be kept confidential.⁽³³⁾

Reasonable Accommodation And Undue Hardship

The ADA requires employers to provide reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities who are employees or applicants for employment, unless it would impose undue hardship.⁽³⁴⁾ Undue hardship means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relation to the cost or difficulty of providing a specific accommodation.⁽³⁵⁾ The ADA also prohibits employers from denying employment opportunities to qualified applicants or employees with disabilities because of the need to provide a reasonable accommodation.⁽³⁶⁾

6. Which entity -- the staffing firm or its client - is obligated to provide a reasonable accommodation for the application process?

   Typically, only the staffing firm is an applicant's prospective employer⁽³⁷⁾ during the application process because it has not yet identified the client for which the applicant will work. In such cases, only the staffing firm is obligated to provide a reasonable accommodation for the application process.

   Example 6: Workfast, a staffing firm, requires all applicants to fill out a job application form. CP, who is substantially limited in her ability to perform manual tasks because of muscular dystrophy, tells a Workfast associate that she will need assistance in filling out the application form. Workfast alone is obligated to provide the accommodation, absent undue hardship.

   Where a client sends an applicant to apply for work with it through a staffing firm, the client will usually qualify as a prospective employer and, as such, will be obligated along with the staffing firm to provide reasonable accommodation for the application process.

   Example 7: EconoShop sends all applicants for temporary positions to apply through Workfast, a staffing firm. EconoShop and Workfast are both obligated to provide reasonable accommodations for the application process for individuals with disabilities who are applicants for temporary positions with EconoShop.

   While a client is generally not required to provide reasonable accommodations for the application process, a client that qualifies as a joint employer of staffing firm workers may still violate the ADA if it continues to obtain workers through a staffing firm although it knows or has reason to know that the firm does not provide reasonable accommodation for the application process. This is because a client that qualifies as a joint employer of staffing firm workers may be liable for a staffing firm's discrimination if the client knows or has reason to know of the discrimination and fails to take corrective action within its control.⁽³⁸⁾

   Example 8: A federal agency hires graphic artists through Sleek Design, a contract firm. Individuals with disabilities have complained to the federal agency that Sleek Design has denied them reasonable accommodations needed for the application process. Assuming that the federal agency qualifies as the joint employer of staffing firm workers, it will violate the Rehabilitation Act if it continues to obtain workers through Sleek Design.

7. Where a staffing firm and its client are joint employers of a staffing firm worker with a disability, are both obligated to provide a reasonable accommodation that the worker needs on the job?

   Yes. Because each qualifies as an employer of the staffing firm worker, each is obligated to provide a reasonable accommodation needed on the job, absent undue hardship,⁽³⁹⁾ if it has notice of the need for the accommodation.

   Example 9: Just-jobs, a temporary employment agency, sends CP, who is deaf, to perform maintenance work for XYZ Corp. Both qualify as CP's employer because Just-jobs hires CP and pays his wages, and XYZ supervises and directs CP's work. CP informs Just-jobs that he will need a sign language interpreter for a one-hour safety orientation program that XYZ Corp. requires all employees to attend. Just-jobs lets XYZ know about CP's need for an interpreter. Just-jobs and XYZ are both obligated to provide a reasonable accommodation.

   If it is not clear what accommodation should be provided, both entities should engage in an informal interactive process with the worker to clarify what s/he needs and to identify the appropriate reasonable accommodation.⁽⁴⁰⁾

   It may be mutually beneficial for the staffing firm and its clients to specify in their contracts with one another which entity will provide reasonable accommodations that are required on the job or how the costs of accommodations will be shared. In this way, the question of which entity will provide an accommodation can be anticipated and resolved before a request is actually received, thereby eliminating unnecessary delay in providing the accommodation. A staffing firm and its clients may, through a contract, allocate responsibility for providing reasonable accommodations in any way they choose. Any contractual arrangement between a staffing firm and a client, however, does not alter their obligations under the ADA.⁽⁴¹⁾

8. Can a staffing firm or its client claim undue hardship if a reasonable accommodation cannot be provided quickly enough to enable a staffing firm worker to begin, or to complete, a temporary work assignment in a timely manner?

   Yes. Some temporary jobs become available on short notice and last for only a brief period of time, during which certain tasks must be completed. In such cases, a staffing firm or client can establish undue hardship by showing that the work assignment had to be filled on short notice and that the accommodation could not be provided quickly enough to enable the staffing firm worker to timely begin or complete a temporary work assignment.

   Example 10: CP applies with All-temps for craft work. CP wears a prosthesis in place of her missing left hand and is substantially limited in her ability to perform manual tasks. In mid-October, All-temps offers CP a temporary assignment, to begin the next day, as a wood cutter with Masters, a manufacturer of small wooden toys. The assignment is to last for two weeks, during which time Masters needs to complete production of a specified number of toys in anticipation of holiday sales that will begin in November. CP tells All-temps that she can perform the job with a reasonable accommodation -- an inexpensive adaptive device that she has used to perform similar work for other employers. Because neither All-temps nor Masters has the device, it must be ordered, and it will take about a week to receive. The accommodation results in an undue hardship for both All-temps and Masters.

   Example 11: Same facts as example 10, except that the temporary work assignment does not begin for three weeks. Because there is adequate time for All-temps and Masters to provide the requested reasonable accommodation, neither can show undue hardship.

   The fact that a staffing firm and its client have a very short period of time within which to provide an accommodation will not alone constitute undue hardship. For example, it is often possible to quickly provide qualified sign language interpreters for people who are deaf. Resources are also available to provide readers for people who are blind on short notice. Staffing firms and their clients should anticipate these types of requests for reasonable accommodations and plan for how to provide them expeditiously when a request is made. (See Question 7 above.)

9. Where a staffing firm and its client are both obligated to provide a reasonable accommodation for a staffing firm worker with a disability, how should cost-related undue hardship be assessed?

   Where a staffing firm and its client are both obligated to provide a reasonable accommodation, the following principles apply:

   • Where a reasonable accommodation would involve significant expense⁽⁴²⁾ for both the staffing firm and the client, even if their resources were combined, both can show undue hardship.

     Example 12: CP applies for temporary work with All-temps and is offered an assignment with XYZ Corp. Because of her disability, CP needs adaptive equipment to use XYZ's machines. Neither All-temps nor XYZ Corp. has sufficient resources of its own to purchase the equipment. Moreover, even when All-temps' and XYZ Corp.'s assets are combined, acquisition of the equipment would still result in significant expense. All-temps and XYZ Corp. can show undue hardship.

   • Where the resources of the staffing firm and the client together are sufficient to provide an accommodation without undue hardship, either entity may still show undue hardship if it can demonstrate that:

     • its resources alone are insufficient to provide the reasonable accommodation without undue hardship; and
     • it made good faith, but unsuccessful, efforts to obtain contribution from the other entity.⁽⁴³⁾

     Example 13: Same facts as example 12, except that the adaptive equipment would not result in significant expense when the resources of the two are combined. All-temps makes good faith efforts to get XYZ to contribute to the cost of the equipment, but XYZ refuses. All-temps can show undue hardship. XYZ Corp. cannot show undue hardship, even if its own resources would have been insufficient to provide the accommodation, because it refused to contribute to the accommodation's cost.

   • Where a reasonable accommodation would have resulted in significant expense for a staffing firm, and it has made good faith, but unsuccessful, efforts to obtain a contribution to the cost from the client, it has an undue hardship defense. However, it should offer the worker the next available assignment for which s/he is qualified.⁽⁴⁴⁾ To avoid future liability for participating in the discriminatory conduct of the client, the staffing firm should inform the client of its obligation to provide reasonable accommodation and it should not assign other workers to that work site until the client agrees to abide by its ADA obligation to provide reasonable accommodation.⁽⁴⁵⁾

   • Where a reasonable accommodation would have resulted in significant expense for a client and it has made good faith, but unsuccessful, efforts to obtain a contribution to the cost from the staffing firm, the client has an undue hardship defense. To avoid future liability for participating in the discriminatory conduct of the staffing firm, the client should inform the staffing firm of its obligation to provide reasonable accommodation and it should not obtain other workers through the staffing firm until the firm agrees to abide by its ADA obligation to provide reasonable accommodation.⁽⁴⁶⁾

     Example 14: X-Perts, a staffing firm, receives a request from its client, Clutter Corp., a manufacturer of household appliances, to fill a position editing its operating manuals. CP, a staffing firm worker who is blind, needs adaptive equipment to perform the editing work on Clutter's computers. The equipment would result in significant expense for either X-Perts or Clutter Corp. alone, but together they can provide the full cost without either one incurring undue hardship. Both X-Perts and Clutter Corp. must contribute to the cost of the adaptive equipment.

     If X-Perts refuses to contribute to the cost of the accommodation, it has violated the ADA. Clutter Corp. can show undue hardship, but should inform X-Perts of its commitment to provide reasonable accommodation and should not obtain other workers through X-Perts until X-Perts agrees to abide by its ADA obligation to provide reasonable accommodation.

     If Clutter Corp. refuses to contribute, it has violated the ADA. X-Perts can show undue hardship, but should offer the worker the next available assignment for which the worker is qualified. X-Perts also should inform Clutter Corp. of its commitment to provide reasonable accommodation and should not assign other workers to that work site until Clutter Corp. agrees to abide by its ADA obligation to provide reasonable accommodation.

   • Where an entity's own resources are sufficient to provide an accommodation without undue hardship, it must do so, even if the other entity refuses to contribute to the cost of the accommodation.

     Example 15: Same facts as example 14, except that Clutter Corp. can provide the accommodation alone without undue hardship. Clutter Corp. asks X-Perts, the staffing firm, to pay part of the cost of the accommodation, but X-Perts refuses. Clutter Corp. must still provide the accommodation and does not have an undue hardship defense.⁽⁴⁷⁾

   • A staffing firm or client that refuses to contribute to the cost of a reasonable accommodation may be liable for a failure to provide a reasonable accommodation, even if the other entity provides it.⁽⁴⁸⁾

10. Where a staffing firm and its client are joint employers of a staffing firm worker with a disability, may one entity claim undue hardship where providing the accommodation is solely within the other's control?

    Yes, if it can demonstrate that it has made good faith, but unsuccessful, efforts to obtain the other's cooperation in providing the reasonable accommodation.⁽⁴⁹⁾

    • A staffing firm that asserts undue hardship under these circumstances should offer the worker the next available work assignment for which s/he is qualified, should inform the client of its commitment to provide reasonable accommodation, and should not assign other workers to that work site until the client agrees to abide by its ADA obligation to provide reasonable accommodation.

    • A client that asserts undue hardship under these circumstances should inform the staffing firm of its commitment to provide reasonable accommodation, and it should not obtain other workers through the staffing firm until the staffing firm agrees to abide by its ADA obligation to provide reasonable accommodation.⁽⁵⁰⁾

      Example 16: CP, who has Down Syndrome, has been sent by Goodstaff, a staffing firm, to various clients to work as a kitchen helper performing simple food preparation tasks. CP has no difficulty performing any of the tasks but, because of his disability, he sometimes gets confused about the order in which the tasks are to be done. As a reasonable accommodation, Goodstaff has provided CP with posters picturing the tasks in the proper sequence that have enabled him to perform his job functions correctly. Goodstaff provides CP with posters for a kitchen helper position with Bon Banquet and offers to adjust them to Bon Banquet's business practices, if necessary. Bon Banquet refuses to let CP use the posters, however, and discharges him when he is unable to complete the tasks in the right order. Goodstaff can show undue hardship, but should offer CP the next available position for which CP is qualified. Goodstaff should also inform Bon Banquet of its commitment to provide reasonable accommodation and should not assign other workers to that work site until Bon Banquet agrees to abide by its ADA obligation to provide reasonable accommodation.

Qualification Standards, Employment Tests, And Other Selection Criteria

The ADA prohibits an employer from using a qualification standard, employment test, or other selection criterion that screens out or tends to screen out an individual with a disability or class of individuals with disabilities, unless the standard, test, or criterion, as used by the covered entity, is job-related for the position to which it is being applied and consistent with business necessity.⁽⁵¹⁾ If the standard, test, or criterion is shown to be job-related and consistent with business necessity, an employer still must consider whether there is a reasonable accommodation that will enable an otherwise qualified individual with a disability to satisfy it.⁽⁵²⁾ With regard to health and safety standards that screen out qualified individuals because of disability, an employer must demonstrate that the requirement, as applied to an individual, satisfies the "direct threat" standard.⁽⁵³⁾

11. Is a staffing firm that uses a qualification standard to disqualify a worker because of his/her disability liable for violating the ADA? Is the client also liable?

    Where the staffing firm and client are joint employers of staffing firm workers, the following principles apply to the use of qualification standards (including the use of the results of medical examinations):

    • A staffing firm will be liable for violating the ADA where:
      • it applies a qualification standard, either directly or at its client's direction, that screens out an individual on the basis of disability and is not job-related and consistent with business necessity; or
      • it knows or has reason to know that a client is applying a qualification standard that is not job-related and consistent with business necessity to screen out a staffing firm worker on the basis of disability and fails to take corrective action within its control.
    • A client will be liable for violating the ADA where:
      • it applies a qualification standard, either directly or through a staffing firm, that screens out an individual on the basis of disability and is not job-related and consistent with business necessity; or
      • it knows or has reason to know that a staffing firm is applying a qualification standard that is not job-related and consistent with business necessity to screen out a staffing firm worker on the basis of disability and fails to take corrective action within its control.

    • If the qualification standard is job-related and consistent with business necessity, the staffing firm and client must consider whether there is a reasonable accommodation that will enable a staffing firm worker with a disability to meet the standard.

      Example 17: XYZ Corp. hires temporary secretaries through Quality Workers. XYZ tells Quality Workers that it requires all secretaries to have a driver's license. CP applies for secretarial positions with Quality Workers and is offered a position with XYZ. Quality Workers withdraws its offer when it discovers that CP does not have a driver's license because of his disability. XYZ Corp. requires its secretaries to have a driver's license so that they can run errands for XYZ's executives, although it is not an essential function of the job. Having a driver's license, therefore, is not job-related and consistent with business necessity. XYZ and Quality Workers have violated the ADA.

      Example 18: Same facts as Example 17, except that XYZ does not tell Quality Workers about the driver's license requirement. CP, however, informs Quality Workers that, when he showed up at XYZ's offices, XYZ refused to allow him to perform the secretarial job because he did not have a driver's license. CP further explains that he does not have a driver's license because of his epilepsy. In this situation, Quality Workers must take corrective action within its control in order to avoid liability under the ADA. Quality Workers should offer CP the next available position for which he is qualified, inform XYZ of its ADA obligations, and should not assign other workers to XYZ until it agrees to abide by these obligations.

12. How does the ADA apply to the administration and use of pre-employment tests in contingent work arrangements?

    Many staffing firms administer their own pre-employment tests to screen applicants or administer tests at the direction of a client. Under the ADA, a covered entity must provide reasonable accommodations to an individual with a disability to ensure that a test accurately measures what it purports to measure, and not the particular skills (e.g., sensory, manual, or speaking skills) that are affected by the disability, unless these are the skills the test is actually intended to measure.⁽⁵⁴⁾ Moreover, where a test does measure the skills affected by an applicant's disability, a covered entity may not use the test results to exclude the individual, unless it can show that the skill is necessary to perform an essential function and that there is either no reasonable accommodation available to enable the individual to perform the function, or any necessary accommodation would result in undue hardship.⁽⁵⁵⁾ In other words, use of the test results must be job-related and consistent with business necessity.

    In the context of contingent work arrangements, therefore, the following principles apply where the staffing firm and client qualify as joint employers of staffing firm workers with disabilities:

    • A staffing firm will be liable under the ADA if it:
      • fails to provide a necessary reasonable accommodation, absent undue hardship, in connection with a pre-employment test that it administers to an individual with a disability either directly or on a client's behalf;
      • uses the results of a test that it administers directly or on a client's behalf to exclude an individual with a disability, where the use of such results is not job-related and consistent with business necessity; or
      • knows or has reason to know that a client is administering or using pre-employment tests in a manner that discriminates against staffing firm workers with disabilities on the basis of disability and fails to take corrective action within its control.

    • A client will be liable under the ADA if it:

      • fails to provide a necessary reasonable accommodation, absent undue hardship, for an individual with a disability in connection with any test administered by the client directly or by the staffing firm on the client's behalf;
      • uses the results of any pre-employment test administered by it directly, or by the staffing firm on its behalf, to exclude an individual on the basis of disability, where the use of such results is not job-related and consistent with business necessity; or
      • knows or has reason to know that a staffing firm is administering or using pre-employment tests in a manner that discriminates against staffing firm workers with disabilities on the basis of disability and fails to take corrective action within its control.

      Example 19: HourStaff, a staffing firm, gives a pre-employment test to all applicants for temporary positions designed to measure their aptitude for performing certain types of jobs. The test is made up of one hundred multiple choice questions, and an applicant records his or her answers by punching a small hole on the answer sheet next to his or her chosen response. A machine then grades the test. CP, who has quadriplegia that substantially limits his ability to perform manual tasks, requests, as a reasonable accommodation, that he be allowed to give his answers orally to someone who can record them to ensure that each hole is completely punched. Assuming that the accommodation would not result in undue hardship, HourStaff will violate the ADA by refusing to provide it.

      Example 20: Same facts as Example 19. CP and other individuals with disabilities inform Items, Inc., which qualifies as a joint employer of staffing firm workers, that HourStaff is refusing to provide reasonable accommodations for the preemployment test. Because Items, Inc. knows or has reason to know that

      HourStaff is violating the ADA by failing to provide reasonable accommodations for qualified applicants with disabilities, Items, Inc. must inform HourStaff of its obligation to provide reasonable accommodation and should not obtain other workers through HourStaff until HourStaff agrees to abide by this ADA obligation.⁽⁵⁶⁾

      Example 21: Stock-up, a grocery store, hires cashiers, stockers, inventory clerks, and maintenance workers through Super-temps, a staffing firm. Stock-up asks Super-temps to administer a math test to applicants for all of Stock-up's positions and instructs Super-temps not to refer anyone for any of the positions who has not passed the test. CP, who has mental retardation that substantially limits his cognitive abilities, is unable to pass the test, even with a reasonable accommodation. The test is not job-related and consistent with business necessity for the stocker or maintenance worker positions. Super-temps and Stock-up, therefore, will violate the ADA if they exclude CP from these positions based on his test results, assuming he can perform the essential functions of the jobs with or without a reasonable accommodation.

1. Peter David Blanck, The Emerging Role of the Staffing Industry in the Employment of Persons with Disabilities: A Case Report on Manpower Inc., (Iowa City, Iowa), 1998, at 6 [hereinafter Manpower Report].

2. Id.

3. Bureau of the Census, U.S. Department of Commerce, Disabilities Affect One-Fifth of All Americans: Proportion Could Increase in Coming Decades (Census Brief No. 97-5, 1997).

4. 42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as amended). Pursuant to the Rehabilitation Act Amendments of 1992, the ADA's employment standards apply to all nonaffirmative action employment discrimination claims of individuals with disabilities who are federal employees or applicants for federal employment. Pub. L. No. 102-569 § 503(b), 106 Stat. 4344, 4424 (1992) (codified as amended at 29 U.S.C. § 791(g) (1994)). Accordingly, the analysis in the guidance applies to federal sector complaints of nonaffirmative action employment discrimination arising under section 501 of the Rehabilitation Act of 1973. It also applies to employment discrimination under section 504 of the Rehabilitation Act. 29 U.S.C. §§ 793(d), 794(d) (1994).

5. See, e.g., People with Disabilities-Temporary Employment Options, President's Committee on Employment of People With Disabilities, at https://www.usccr.gov/pubs/crd/federal/pcepd.htm (last visited December 4, 2000).

6. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, 8 FEP Manual (BNA) 405:7551 (1997)[hereinafter Contingent Workers Guidance]. This enforcement guidance can be found on EEOC's website, www.eeoc.gov.

7. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 8 FEP Manual (BNA) 405:7601 (1999) [hereinafter Reasonable Accommodation Guidance]; Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) of 1990, 8 FEP Manual (BNA) 405:7701 (2000)[hereinafter Disability-Related Inquiries and Medical Examinations of Employees); Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, 8 FEP Manual (BNA) 405:7191 (1995) [hereinafter Preemployment Questions and Examinations]. These enforcement guidance documents can be found on EEOC's website, www.eeoc.gov.

8. 42 U.S.C. § 12112(b)(2) (1994); 29 C.F.R. § 1630.6 (2000).

9. Contingent Workers Guidance, supra note 6, at 3-4, 8 FEP at 405:7551, 7553.

10. Id. at 7-13 (Q&As 2-3), 8 FEP at 405:7555-59.

11. To determine whether a staffing firm or its client qualifies as the employer of a staffing firm worker, see id. at 7-11 (Q&A 2), 8 FEP at 405:7555-58. A staffing firm worker must qualify as an "applicant" or "employee" within the meaning of federal anti-discrimination statutes of at least one of the entities in order for there to be liability under Title I of the ADA. Id. at 4-7 (Q&A 1), 8 FEP at 405:7554-55. Often, a staffing firm and its client will be joint employers of a staffing firm worker. For information on how to determine whether entities are joint employers, see Section 2: Threshold Issues, [Vol. I] EEOC Compl. Man. (BNA) 605:i (May 12, 2000).

12. Contingent Workers Guidance, supra note 6, at 19-22 (Q&A 8), 8 FEP at 405:7563-64.

13. ADA section 102(a) does not limit its protections to an employer's own employees, but rather protects an "individual" from discrimination. See 42 U.S.C. § 12112(a) (1994); 29 C.F.R. § 1630.4 (2000). Thus, an employer is prohibited from interfering with a person's employment opportunities with another employer, even if s/he is not its employee. Contingent Workers Guidance, supra note 6, at 11-13 (Q&A 3), 8 FEP at 405:7558-59. ADA section 503 also protects "an individual" and is not limited in its applicability to covered entities. See 42 U.S.C. § 12203 (1994); 29 C.F.R. § 1630.12 (2000). In contrast, a federal agency cannot be found liable for discrimination under a "third party interference" theory. Contingent Workers Guidance, supra note 6, at 13-14 (Q&A 4), 8 FEP at 405:7559.

14. The ADA prohibits employment agencies from engaging in all of the same types of discrimination as other covered entities. See 42 U.S.C. §§ 12111-12112 (1994); 29 C.F.R. §§ 1630.2(b), 1630.4 (2000). Therefore, the ADA requirements discussed in the following sections apply to staffing firms when they act as employment agencies.

15. See supra note 13.

16. See Preemployment Questions and Examinations, supra note 7, at 6-7(section entitled "The Pre-Offer Stage," sixth Q&A), 8 FEP at 405:7193-94.

17. Id.

18. 42 U.S.C. § 12112(d) (1994); 29 C.F.R. § 1630.14 (1998) (emphasis added). Generally, any medical information obtained must be kept confidential. 42 U.S.C. § 12112(d)(3) (1994); 29 C.F.R. § 1630.14(b)(1)-(2) (2000).

19. 42 U.S.C. § 12112(d)(4) (1994); 29 C.F.R. § 1630.14(c) (2000). For a more complete discussion of the circumstances under which employers may make disability-related inquiries or require medical examinations of employees, see Q&A 5 below.

20. For a discussion of the factors indicating an employment relationship, see Contingent Workers Guidance, supra note 6, at 4-7 (Q&A 1), 8 FEP at 405:7554-55.

21. See id. at 7-11 (Q&A 2); 8 FEP at 405:7555-58.

22. The Commission's position is consistent with Congress' reasons for prohibiting disability-related inquiries and medical examinations until after an offer of employment. Congress established this process so that individuals will know whether they have been denied employment because of a medical condition, and thus for the Commission to say otherwise would be to undermine Congressional intent. See S. Rep. No. 101-116, at 39 (1989); H.R. Rep. No. 101-485, pt. 2, at 72-73 (1990); H.R. Rep. No. 101-485, pt. 3, at 42-43 (1990); see also Preemployment Questions and Examinations, supra note 7, at 1 ("Background"), 8 FEP at 405:7191.

23. A staffing firm may, but is not required to, ask the same disability-related questions or require the same medical examinations each time it sends a particular worker on an assignment in the same job category. Therefore, the staffing firm need only make disability-related inquiries and require medical examinations the first time it offers a worker an assignment in a particular job category. If the staffing firm chooses to administer the same questions or examinations each time it offers a position in a particular job category, however, that policy must be uniformly applied.

24. 42 U.S.C. § 12112(b)(6) (1994); 29 C.F.R. §§ 1630.10, 1630.14(b)(3) (2000); 29 C.F.R. pt. 1630 app. § 1630.14(b) (2000). Under current regulations applicable to federal sector employers, a federal agency must also demonstrate that there are no criteria available that would screen out fewer individuals with disabilities. 29 C.F.R. § 1614.203(d)(1)(ii) (2000). In March 2000, the Commission issued a Notice of Proposed Rulemaking regarding proposed revisions to 29 C.F.R. § 1614.203 to implement the ADA's nondiscrimination standards for federal sector employers. See 65 Fed. Reg. 11019, 2000 WL 226980 (3/1/00). As of the date of issuance of this Guidance, the Commission is proceeding with the rulemaking process.

25. 29 C.F.R. §§ 1630.15(b)(2), 1630.2(r) (2000).

26. Of course, for many types of temporary work assignments, a worker's medical condition is inconsequential.

27. 42 U.S.C. § 12112(d)(4) (1994); 29 C.F.R. § 1630.14(c) (2000).

28. "Direct threat" means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. § 1630.2(r) (1998). Direct threat determinations must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence. Id. To determine whether an employee poses a direct threat, the following factors should be considered: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and, (4) the imminence of the potential harm. Id.

29. The Commission explained this standard in its enforcement guidance, EEOC Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities at 15, 8 FEP Manual (BNA) 405:7461, 7468-69 (1997) [hereinafter ADA and Psychiatric Disabilities]. This enforcement guidance can be found at EEOC's website, www.eeoc.gov.

30. See 29 C.F.R. § 1630.15(e) (2000) (It may be a defense to a charge of discrimination . . . that a challenged action is required or necessitated by another Federal law or regulation . . . .).

31. See Disability-Related Inquiries and Medical Examinations of Employees, supra note 7, at 25-26 (Q&A 12), 8 FEP at 405:7714.

32. 29 C.F.R. pt. 1630 app. § 1630.9 (2000); see also Reasonable Accommodation Guidance, supra note 7, at 12-15 (Q&A 6), 8 FEP at 405:7607-08; Disability Related Inquiries and Medical Examinations of Employees, supra note 7, at 20-21 (Q&A 7), 8 FEP at 405:7711.

33. 42 U.S.C. § 12112(d)(3) (1994); 29 C.F.R. § 1630.14(b)(1)-(2) (2000).

34. The Commission has set forth the ADA principles on reasonable accommodation and undue hardship in the Reasonable Accommodation Guidance, supra note 7.

35. Id. at 2-7 (section entitled "General Principles"), 8 FEP at 405:7601-04; see also 42 U.S.C. § 12111(10) (1994); 29 C.F.R. § 1630.2(p) (2000); 29 C.F.R. pt. 1630 app. § 1630.2(p) (2000)(explaining term "undue hardship").

36. 42 U.S.C. § 12112(b)(5)(B) (1994); 29 C.F.R. § 1630.9(b) (2000).

37. A staffing firm is also obligated as an employment agency to provide reasonable accommodation for the application process. See supra note 14 and accompanying text.

38. See infra pp. 2-3 (stating this general principle of liability).

39. Where providing a reasonable accommodation is within the sole control of one entity that fails or refuses to provide it, the other can show undue hardship. See infra Q&A 9.

40. See Reasonable Accommodation Guidance, supra note 7, at 11-12 (Q&A 5), 8 FEP at 405:7606-07, for further information on the informal interactive process. As part of that process, the staffing firm and its client may share medical information about an individual submitted in connection with a request for reasonable accommodation where it is necessary to identify and provide needed accommodations. Generally, any medical information obtained by the staffing firm or client must be kept confidential. 42 U.S.C. § 12112(d)(3) (1994); 29 C.F.R. § 1630.14(b)(1)-(2) (2000). However, the ADA includes an exception for supervisors and managers who need to be told about necessary restrictions on the work or duties of the employee and about necessary reasonable accommodations. 42 U.S.C. § 12112(d)(3) (1994); 29 C.F.R. § 1630.14(b)(1)-(2) (2000). (Staffing firms and clients are subject to the ADA's confidentiality provisions if they qualify as a worker's employer. A staffing firm is subject to such provisions as an employment agency, as well. Even if a staffing firm or client does not qualify as a worker's employer, it is prohibited from interfering with the worker's exercise or enjoyment of ADA rights. See 42 U.S.C. § 12203(b) (1994); 29 C.F.R. § 1630.12(b) (2000)).

41. The ADA contains a specific provision which says that a covered entity cannot evade its obligations under the law through a contractual or other relationship. See 42 U.S.C. § 12112(b)(2) (1994); 29 C.F.R. § 1630.6 (2000). Thus, both the staffing firm and the client remain responsible under the ADA to ensure that the accommodation is provided. If either the staffing firm or client breaches a contractual obligation to provide a reasonable accommodation, the other entity may have a breach of contract action for the cost of providing the accommodation and for other costs. See 29 C.F.R. pt. 1630 app. § 1630.6 (2000).

42. See 42 U.S.C. § 12111(10) (1994)(defining "undue hardship" as significant difficulty or expense); 29 C.F.R. § 1630.2(p) (2000)(same).

43. Where a staffing firm and a client have both contributed to the cost of a reasonable accommodation, they may specify in a contract which one will keep it. If an entity breaches its contractual obligation, the other may have a breach of contract remedy.

44. See Contingent Workers Guidance, supra note 6, at 19-22 (Q&A 8), 8 FEP at 405:7563-64 (staffing firm is liable if it knew or should have known about a client's discrimination and failed to take prompt corrective measures within its control, such as affording the worker an opportunity to take a different job assignment).

45. Id.

46. Id.

47. If Clutter Corp. has a contract with X-perts according to which X-perts is required to pay all or part of the cost of reasonable accommodations, then Clutter Corp. may have a breach of contract claim against X-perts. See 29 C.F.R. pt. 1630 app. § 1630.6 (2000).

48. In such a situation, the EEOC might pursue injunctive relief against the entity that refuses to contribute to the cost of the accommodation.

49. For example, a staffing firm is not in a position to make structural changes to its client's premises and can establish undue hardship by demonstrating that it has made good faith, but unsuccessful, efforts to get the client to make the changes. See Reasonable Accommodation Guidance, supra note 7, at 60-61 (Q&A 46), 8 FEP at 405:7633-34.

50. See Contingent Workers Guidance, supra note 6, at 19-22 (Q&A 8), 8 FEP at 405:7563-64 (asserting that client may be liable if knows or has reason to know of staffing firm's discrimination and fails to take corrective action within its control).

51. 42 U.S.C. § 12112(b)(6) (1994); 29 C.F.R. § 1630.10 (2000). A qualification standard, employment test, or other selection criterion may be job-related and consistent with business necessity if it is related to a person's ability to perform the essential functions of a position. 29 C.F.R. pt. 1630 app. § 1630.10 (2000); 29 C.F.R. § 1630.15(b), 29 C.F.R. pt. 1630 app. § 1630.15(b) (2000).

52. 29 C.F.R. pt. 1630 app. § 1630.10 (2000). Under current federal sector regulations, a federal agency must also be able to demonstrate that there is no qualification standard available that would screen out fewer individuals with disabilities. 29 C.F.R. § 1614.203(d)(1)(ii) (2000). See supra note 24 (noting ongoing rulemaking process to revise 29 C.F.R. § 1614.203 to incorporate the ADA nondiscrimination standards).

53. See 29 C.F.R. § 1630.2(r) (2000).

54. 29 C.F.R. § 1630.11 (2000); 29 C.F.R. pt. 1630 app. § 1630.11 (2000).

55. Id.

56. See Contingent Workers Guidance, supra note 6, at 19-22 (Q&A 8), 8 FEP at 405:7563-64 (staffing firm is liable if it knew or should have known about a client's discrimination and failed to take prompt corrective measures within its control, such as affording the worker an opportunity to take a different job assignment).