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Updating Emergency Response Procedures

Question: We have employees working in an area of the country that has experienced a lot of natural disasters over the last couple of years; from earthquakes to flooding to snow storms. As a result, we are updating our company's emergency response procedures. We have some employees who are visibly disabled and others who we believe may have some medical disabilities they have not disclosed to the company. Are we legally permitted to ask our employees to disclose their medical information in order for us to assess what if any special emergency response accommodations we need to have at the ready for disabled employees (both those with visible disabilities and those without)?

Monday, June 17, 2013
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Answer: For purposes of planning for an emergency evacuation, it is legal to ask employees if they require assistance. No federal discrimination law prohibits employers from asking their employees for information that is necessary for a comprehensive emergency evacuation plan. Fact Sheet on Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures, http://www.eeoc.gov/facts/evacuation.html. Further, certain industries, as well as certain state and local laws, require emergency employers to have evacuation plans – and it is important that the plans reflect a thoughtful consideration of disabled employees in their development.

The EEOC Fact Sheet provides guidance that evacuation plans should take into account the needs of individuals with medical conditions, such as conditions covered by the Americans with Disabilities Act (the "ADA"), and identifies some appropriate times to identify individual needs for an evacuation plan:

1)     After making an offer of employment, but before employees commence at your company:  Ask all individuals if they need assistance during an emergency. Make sure this question is asked of all employees at the same point in the hiring process.

2)     Periodically survey your employees to determine what assistance they require: Updating an emergency plan provides a great opportunity to do this. When asking if assistance is required, be clear that self-identification is voluntary. The EEOC further advises that you should provide the context for why you are requesting the information from employees.

A Special Note about Self-identification and Specific Needs

The U.S. Department of Labor directs that for employees with obvious disabilities, an employer "should not assume that employees with obvious disabilities will need assistance during an evacuation."  Effective Emergency Preparedness Planning: Addressing the Needs of Employees with Disabilities, http://www.dol.gov/odep/pubs/fact/effective.htm. Therefore, ask employees who have self-identified as disabled or have visible disabilities if they will need assistance in an emergency evacuation. It is important not to assume that every single disabled employee needs assistance - you should ask first. If the employee informs you that assistance is needed, you should discuss, and agree upon, what type of assistance will be needed. The EEOC suggests that a memorandum with an attached form requesting information can accomplish this, as can follow-up conversations with individuals. The inquiry should be specifically related to the evacuation plan. Avoid asking about the precise details of a medical condition and instead focus on learning whether the employee will walk himself, use crutches, or will need to pack up special medication in the event of an evacuation.

Confidentiality

As with any other matter involving an employee's medical condition, all information concerning medical accommodations for certain employees under your evacuation plan should be kept confidential and shared only with those who have responsibilities under the emergency evacuation plan. However, the ADA provides an exception to the confidentiality rules that allows disability-related evacuation information to be shared with safety personnel who have special responsibilities during an emergency such as:  medical professionals, emergency coordinators, floor captains, colleagues who volunteer as "buddies," building security officers who must confirm that everyone has been safely evacuated, and other non-medical personnel who assume responsibility for assuring a safe evacuation.

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Judicial interpretation

The EEOC guidance is in line with the ADA and courts' interpretations of what constitutes a business necessity-disability inquiry. So long as a question or questionnaire does not necessitate disclosing the existence of a disability (other than simply the need for assistance (and the type of assistance needed during an evacuation) and/or what the specific disability is, the inquiry is a protected disability-related inquiry. Miller v. Whirlpool Corp., 807 F. Supp. 2d 684, 687 (N.D.Ohio 2011). Thus, an inquiry about evacuation needs should be "no broader or more intrusive than necessary" and a "reasonably effective method of achieving a business necessity."  Id. At 687 (citing to Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 97-98 (2d Cir. 2003). The ADA prohibits making inquiries of an employee "as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."  42 U.S.C. sec. 12112(d)(4)(a).

Conclusion
Few will disagree that having an effective evacuation plan is, in fact, a business necessity. Tailoring your inquiry to whether or not assistance is needed in the event of an emergency, instead of why the assistance is needed, will likely keep you from running afoul of the ADA and EEOC guidance on the subject.

Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate K.M. Zouhary assisted with this article.

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