EEOC Issues Guidance on the Application of the ADA to Contingent Workers

On December 27, 2000, the U.S. Equal Employment Opportunity Commission (the “EEOC”) issued new enforcement guidance clarifying the application of the Americans with Disabilities Act (the “ADA”) to contingent workers.

Background

In 1997, the EEOC issued enforcement guidance regarding the application of equal employment opportunity (“EEO”) laws to contingent workers (e.g., temporary, contract, and leased workers who are placed in job assignments by temporary employment agencies or staffing firms). In accordance with this enforcement guidance, the EEOC frequently deems both the staffing firm and the client the “employer” of contingent workers for purposes of federal EEO laws. This means that both the staffing firm and the client may be held liable for violating the rights of contingent workers under federal employment discrimination laws. It is not surprising, then, that the EEOC’s newly-issued enforcement guidance indicates that both the staffing firm and the client have ADA obligations with respect to contingent workers.

Important Information for Companies that Rely on Staffing Firms to Provide Contingent Workers

The EEOC’s enforcement guidance provides that:

• The client is liable under the ADA if it requests that the staffing firm disqualify disabled job applicants for reasons that are not job-related and consistent with business necessity. Likewise, the client is liable if it knows or has reason to know that the staffing firm is using a discriminatory qualification standard.
• No medical examination may be required, and no disability-related questions may be asked, of a contingent worker until that worker receives an assignment with a specific client.
• Once the contingent worker receives an assignment with a specific client, the staffing firm or the client may ask the worker disability-related questions or require a medical exam, as long as it does so for all applicants for the same job.
• During the work assignment, the staffing firm or its client may ask a contingent worker disability-related questions or require a medical examination only if it has a reasonable belief that a medical condition will render the worker unable to perform his or her job or will result in a direct threat to the health or safety of others in the workplace.
• It is typically the staffing firm’s responsibility to provide reasonable accommodations to disabled applicants during the application process. The enforcement guidance provides, however, that a client may violate the ADA if 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.
• When a client sends an applicant to apply for work with it through the staffing firm, both the client and the staffing firm are responsible for providing reasonable accommodation for the application process.
• Both the staffing firm and the client are obligated to provide reasonable accommodations needed on the job by disabled contingent workers, absent undue hardship.

How to Avoid ADA Liability Arising From Contingent Workers’ Claims

Any company utilizing a staffing agency to provide contingent workers is well advised to assume that it will bear joint responsibility for violations of EEO laws committed by the staffing agency. Accordingly, the staffing agency should be contractually bound to comply with all applicable EEO laws, and, more specifically, to provide reasonable accommodations to job applicants as required by the ADA. Ideally from the client’s perspective, its contract with the staffing agency will also provide that the staffing agency is responsible for paying for any accommodations required by disabled contingent workers in the course of their assignment to the client.

Most importantly, to avoid liability under the ADA for a staffing agency’s violations of that statute, the client must take corrective action within its control if it knows the staffing agency is discriminating against disabled workers or job applicants.

For more information about the EEOC’s new enforcement guidance or about the ADA more generally, please contact any of the Firm’s attorneys.