Employers Hiring Temp Workers Need New Contract Provisions

On December 22, 2000, the Equal Employment Opportunity Commission (EEOC) issued a guidance that explains when temporary worker agencies and their company clients are responsible for providing reasonable accommodations to disabled workers. This likely will require agencies and employers to consider new forms of contracts and make negotiations between the two more difficult.

The guidance makes clear that the temp agency and employer must make efforts to provide reasonable accommodation to disabled workers. Both parties must not only comply with the ADA, but can be sued if either party knows the other is in violation. It suggests drafting agreements that spell out each party's responsibilities regarding reasonable accommodations for disabled workers.

Here is what employers need to know about this new guidance:

  • Liability: In most cases a temp worker is considered an employee of the agency and employer-client for EEOC purposes. The agency is responsible for reasonable accommodations during the application process, with one exception: where the employer client sends an applicant to the agency to apply for a position. Then both share responsibility.

    The employer also would share liability if it knew that the agency wasn't providing reasonable accommodations in the application process and didn't take action to correct the problem. Once the temp worker is placed with the employer, the employer and temp agency share responsibility for complying with ADA.

  • Undue Hardship: Agencies and their employer-clients can claim undue hardship in complying with the guidance or ADA by showing that the job became available on short notice and a reasonable accommodation could not be put in place quickly enough. Both also can claim undue hardship if their resources, even when combined, aren't enough to provide an accommodation without significant expense. Either party may show undue hardship if it made a good-faith, but unsuccessful, effort to have the other party contribute to the accommodation's cost.

  • Disability-Related Questions: A temp agency may not ask a worker questions relating to disabilities until the worker receives an offer of employment from an employer. Then the agency or its client may require medical examinations or ask disability-related questions. But these medical examinations or disability-related questions must be asked of all employees. Once the worker has been placed, the agency or employer may ask questions or request medical examination only where they reasonably believe that a medical condition makes it impossible to perform the job. An offer of employment may be withdrawn if a job becomes available on short notice and if there isn't time for the worker to provide the needed medical information.

    The guidance does not give a temp agency much time to react if a worker needs an accommodation. A solution is to staff only workers who have had previous assignments, and have already been asked relevant disability and medical questions, in short-notice positions. Temp agencies can ask limited questions relating to disability if there is an obvious disability and whether an applicant can meet certain job requirements.

  • Qualification Standards and Screening Tests: A temp agency or its company-client can be held liable if it knows or has reason to know that the other party is using discriminatory qualifications standards or screening procedures. A pre-employment skills test can be used only to screen workers if the test is directly related to the position being staffed, not used to exclude persons with disabilities.

  • Negotiating Agreements Regarding Liability: Employers and temp agencies should draft agreements that explicitly describe each party's liability with regard to providing reasonable accommodations for workers with disabilities. These agreements should state the responsibilities of each party and when indemnification is appropriate. Who bears the cost of the accommodations depends on the nature of the accommodation and whether it's more reasonably provided at the work site. Accommodations involving alterations of the layout of a work space normally are the responsibility of the employer.

Start negotiating temp worker employment contracts that involve language as to the liability and costs of accommodations for workers and be ready for some difficult conversations regarding those subjects. It won't be an easy road, but it will be well worth it in the legal end.