The U.S. Equal Employment Opportunity Commission
Questions and Answers: Enforcement Guidance: Application of the ADA to Contingent Workers
Placed by Temporary Agencies and Other Staffing Firms
The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed into law on September 25, 2008 and becomes effective January 1, 2009. Because this law makes several significant changes, including changes to the definition of the term "disability," the EEOC will be evaluating the impact of these changes on this document and other publications. See the list of specific changes to the ADA
made by the ADA Amendments Act.
Why did the EEOC issue this Guidance?
- Contingent workers placed by staffing firms, including for example, temporary, contract,
and leased workers, represent a growing segment of the labor force. Employment through
staffing firms is particularly critical for individuals with disabilities who are seeking to
move into the workforce.
- In 1997, the Commission issued an enforcement guidance titled, "Application of EEO
Laws to Contingent Workers Placed by Temporary Employment Agencies and Other
Staffing Firms" ("Contingent Workers Guidance") that dealt generally with the liability
of staffing firms and their clients for violations of federal employment discrimination
- This guidance addresses unanswered questions in the prior guidance and explains the
responsibilities of staffing firms and their clients in complying with requirements
unique to the ADA, including for example, reasonable accommodation and rules concerning
disability-related questions and medical examinations.
What ADA issues does this Guidance address?
- This guidance focuses primarily on the allocation of responsibilities between
employers and staffing firms.
- The most important issues covered in the guidance are:
- the circumstances in which staffing firms and their clients may ask disability-related
questions or require medical examinations of applicants and employees (Questions
- the extent to which a staffing firm and its clients are required to provide reasonable
accommodations for staffing firm workers with disabilities (Questions 6-10); and
- a staffing firm's and client's liability for using qualification standards and
preemployment tests that discriminate on the basis of disability (Questions 11 &
- This guidance does not include a detailed discussion of when an entity is an employer or
when a staffing firm and its client are joint employers. These concepts are fully
discussed in the Contingent Workers Guidance.
- For more information about the issues discussed in the Guidance, please consult the
question numbers referenced throughout this document.
To whom does this Guidance apply?
- The Guidance applies to private and to state and local government employers with fifteen
or more employees. Federal sector employers also are covered by the Guidance, as the
result of the 1992 amendments to the Rehabilitation Act.
- The ADA's requirements generally apply to "qualified individuals with disabilities."
However, the discussion of disability-related inquiries and medical examinations in the
Guidance applies to all applicants and employees, whether they have disabilities or not.
Disability-Related Inquiries and Medical Examinations
The ADA sets forth rules about when covered entities may ask disability-related
questions or require medical examinations of applicants and employees. This guidance
deals with these requirements in the unique setting of contingent work arrangements.
What constitutes an offer of employment to a staffing firm worker? (Questions 1 and 2)
- Generally, the offer occurs when the worker receives an assignment with a specific client.
A staffing firm's placement of someone on its roster for future consideration does not
constitute an offer of employment because typically there is no employment relationship at
What types of disability-related questions and medical examinations are permitted after an
offer of employment has been made to a staffing firm worker? (Questions 3, 5)
- After an offer has been made, a staffing firm or its client may ask any disability-related
questions or require any medical examinations that it chooses, as long as it does so for all
applicants for the same job. However, if the staffing firm or client wants to withdraw the
offer from an applicant with a disability based on the answers to these questions or the
results of medical examinations, it has to show that the applicant either: (1) cannot
perform the essential functions of the job, even with a reasonable accommodation; or (2)
would pose a direct threat (i.e., a significant risk of substantial harm).
- During the work assignment, a staffing firm or its client generally may ask a staffing firm
worker disability-related questions or require a medical examination only where it has a
reasonable belief that a medical condition will make the worker unable to do the job or
will result in a direct threat.
What if a job becomes available on very short notice and there isn't time
for a staffing firm worker to provide needed medical information? (Question 4)
- The offer may be withdrawn. However, a staffing firm should consider telling an
applicant what medical information will be needed before a particular assignment is made.
That way, the applicant can obtain the needed information and provide it quickly if a
particular assignment becomes available on short notice.
Reasonable Accommodation and Undue Hardship
Which entity - the staffing firm or its client - has to provide a reasonable accommodation for
the application process? (Question 6)
- Typically, only the staffing firm will have to provide reasonable accommodations for the
application process, since no particular client has been identified as a prospective
- However, when a client sends an applicant to apply for work with it through the staffing
firm, both the staffing firm and the client must provide reasonable accommodation for the
- Even though a client does not usually have an obligation to provide a reasonable
accommodation in the application process, it might still violate the ADA if it is a joint
employer of staffing firm workers, and it knows or has reason to know that the staffing
firm is not providing reasonable accommodations for the application process but fails to
take corrective action within its control.
Where a staffing firm and its client are joint employers of a staffing firm worker with a
disability, which one has to provide reasonable accommodations needed on the job?
- Both the staffing firm and the client are obligated to provide a reasonable accommodation
needed on the job, absent undue hardship, if they have notice of the need for it. The
staffing firm and client may wish to set out in their contracts how reasonable
accommodations will be provided and who will pay for them.
What happens if a job becomes available on short notice and there is no time for the staffing
firm or client to provide a reasonable accommodation? (Question 8)
- Some temporary work assignments become available on short notice and last only a brief
period of time, during which certain tasks have to be completed. In these circumstances,
the staffing firm or its client could establish undue hardship by showing that the job
became available on short notice and the accommodation could not be provided quickly
enough to enable the staffing firm worker to timely begin or complete a temporary
What does the Guidance say about how staffing firms and their clients should
determine cost-related undue hardship? (Question 9)
- Where the resources of the staffing firm and its client together are insufficient to provide
an accommodation without significant expense, both have an undue hardship defense.
- A staffing firm or client whose resources are insufficient to provide the accommodation
also may have an undue hardship defense if it made good faith, but unsuccessful, efforts to
have the other entity contribute to the accommodation's cost.
- Where a staffing firm and its client are both obligated to provide a reasonable
accommodation, the entity that refuses to contribute to the accommodation's cost may
be liable for failing to provide the accommodation. If the other entity is able to provide
the accommodation without undue hardship, it must do so.
What should a staffing firm or client do if providing the accommodation is solely within the
control of the other entity, e.g., where the accommodation requires changes to the client's
workplace? (Question 10)
- Where a staffing firm and its client are joint employers of a staffing firm worker with a
disability, one entity may claim undue hardship where providing the accommodation is
solely within the other entity's control if it made good faith, but unsuccessful, efforts to
obtain the other's cooperation in providing the reasonable accommodation.
Qualification Standards, Employment Tests, and Other Selection Criteria
What does the Guidance say about the liability of staffing firms and their clients for the use of
discriminatory job standards? (Question 11 )
- Job standards that staffing firms and their clients use that exclude an individual with a
disability from employment have to be job-related and consistent with business necessity.
- If the qualification standard is not job-related and consistent with business necessity, the
staffing firm is liable for violating the ADA if it is applying either its own standard or its
client's standard. The client is liable if it requested the staffing firm to use the standard or
if it used the standard directly.
- A staffing firm also may be liable if it knows or has reason to know that a client is using a
discriminatory qualification standard and fails to take corrective action within its control.
The same is true of a client that knows or has reason to know that a staffing firm is using a
discriminatory qualification standard.
- If the qualification standard is job related and consistent with business necessity, the
staffing firm and/or the client must consider whether there is a reasonable accommodation
that will enable a staffing firm worker with a disability to meet the standard.
How does the ADA apply to the administration of pre-employment tests in the contingent work
setting? (Question 12)
- A staffing firm and a client must make reasonable accommodations so that individuals
with disabilities can take any tests they administer directly or at the other entity's
- Also, a staffing firm and its client may not use tests results to screen out individuals from
employment on the basis of disability, unless use of the test results is job-related and
consistent with business necessity.
- Finally, if the staffing firm or its client knows that the other entity is discriminating with
respect to pre-employment testing, then it must take corrective action within its control in
order to avoid liability under the ADA.
This page was last modified on December 27, 2000.
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