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Fact Sheet on Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures
Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008
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.
Introduction
In light of recent events, many employers are developing or re-evaluating emergency procedures to ensure the safe evacuation of all employees. A comprehensive emergency evacuation plan should provide for prompt and effective assistance to individuals whose medical conditions may necessitate it. Many employers have asked how the Americans with Disabilities Act (ADA) and the Rehabilitation Act affect their ability to achieve this goal.(1) Specifically, employers have asked whether they may request information to help identify individuals who might need assistance because of a medical condition and whether they can share this information with others in the workplace. As the following questions and answers demonstrate, federal disability discrimination laws do not prevent employers from obtaining and appropriately using information necessary for a comprehensive emergency evacuation plan.(2)
- May an employer ask employees whether they will require assistance in the event of an evacuation because of a disability or medical condition?
Yes. Some employees may need assistance because of medical conditions that are not visually apparent. Others may have obvious disabilities or medical conditions but may not need assistance. Employers, therefore, are allowed to ask employees to self-identify if they will require assistance because of a disability or medical condition.
- How may an employer identify individuals who may require assistance?
There are three ways that an employer may obtain information:
- After making a job offer, but before employment begins, an employer may ask all individuals whether they will need assistance during an emergency.
- An employer also may periodically survey all of its current employees to determine whether they will require assistance in an emergency, as long as the employer makes it clear that self-identification is voluntary and explains the purpose for requesting the information.
- Finally, whether an employer periodically surveys all employees or not, it may ask employees with known disabilities if they will require assistance in the event of an emergency. An employer should not assume, however, that everyone with an obvious disability will need assistance during an evacuation. For example, many individuals who are blind may prefer to walk downstairs unassisted. People with disabilities are generally in the best position to assess their particular needs.
An employer should inform all individuals who are asked about their need for emergency assistance that the information they provide will be kept confidential and shared only with those who have responsibilities under the emergency evacuation plan. (See Question 4 below.)
- May an employer specifically ask what type of assistance will be needed?
Yes. An employer may ask individuals who indicate a need for assistance because of a medical condition to describe the type of assistance they think will be needed. One way that this can be done is by giving all employees a memo with an attached form requesting information. The employer also may have a follow-up conversation with an individual when necessary to obtain more detailed information. For example, it would be important for an employer to know whether someone who uses a wheelchair because of mobility limitations is able to walk independently, with or without the use of crutches or a cane, in an emergency situation. It also would be important for an employer to know if an individual will need any special medication, equipment, or device (e.g., an assisted wheelchair carrier strap or a mask because of a respiratory condition) in the event of an emergency. Of course, an employer is entitled only to the information necessary for it to be prepared to provide assistance. This means that, in most instances, it will be unnecessary for an employer to know the details of an individual’s medical condition.
- Who is allowed to have information about employees needing assistance in an emergency?
The ADA has provisions that require employers to keep medical information about applicants and employees confidential. These provisions, however, include an exception that allows an employer to share medical information with first aid and safety personnel. This exception would allow an employer to share information about the type of assistance an individual needs in the event of an evacuation with medical professionals, emergency coordinators, floor captains, colleagues who have volunteered to act as “buddies,” building security officers who need to confirm that everyone has been evacuated, and other non-medical personnel who are responsible for ensuring safe evacuation. These individuals are entitled to the information necessary to fulfill their responsibilities under the employer’s emergency evacuation plan.
1.The ADA applies to private employers with fifteen or more employees and to state and local government employers. The Rehabilitation Act applies to most federal employers, and its substantive requirements are the same as those that apply to employers covered by the ADA.
2.The Commission previously has issued more detailed guidance on related issues concerning disability-related inquiries and medical examinations of applicants and employees. See Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act of 1990 (October 10, 1995) and Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000). These and other guidances are available on this web site.
More information on emergency preparedness for employees with disabilities can be found on the President’s New Freedom Initiative Disability Direct web site http://www.disabilities.gov/ and on the Job Accommodation Network’s web site at http://www.jan.wvu.edu/.
This page was last modified on October 27, 2005.
Employment Agreement
In consideration of my employment by Company XYZ (“Company”), I agree as follows:
- Confidential Information.
(a) Definition. “Confidential Information” means the proprietary information and trade secrets of Company and its customers as described below:
(i) Included in “Confidential Information” are the object code and source code to Company’s software, Company’s marketing plans and strategies, Company’s plans for new product development, Company’s technical designs, Company’s data dictionaries, information relating to Company’s financial status, information relating to Company’s human resource system, and any other information that Company marks confidential or by separate memorandum or e-mail informs me is confidential.
(ii) Also included in “Confidential Information” is any information of Company’s customers that I have access to in performing my employment duties for Company.
(iii) Excluded from “Confidential Information” is information that: (x) I can prove was in my possession before I received it from the Company; (y) is in the public domain through no fault of my own; or (z) I learned from a third party not related to Company. Information licensed by Company to customers under a confidentiality restriction is not considered to be in the public domain.
(b) Nondisclosure. I agree that I will not disclose Confidential Information to any third party not employed by Company unless Company authorizes me to do so in writing. I further agree that I will not use Confidential Information for any purpose except to perform my employment duties for Company. These agreements will continue to apply after I am no longer employed by Company.
- Return of Company Property. Upon termination of my employment with Company, I will promptly deliver to Company, without copying or summarizing, all material related to Company’s business that is in my possession or under my control including, without limitation, all physical property, keys, documents, lists, electronic information storage media, manuals, letters, notes and reports.
- Works Made For Hire. I understand that any work that I create or help create at the request of Company, including software, user manuals, training materials, sales materials, and other written and visual works, are works made for hire in which Company owns the copyright. I may not reproduce or publish these copyrighted works, except in the pursuit of my employment duties.
- Inventions. Any inventions, discoveries and ideas (“Technology”) that I develop while performing work assigned to me by Company are owned by Company. I will sign any assignment or other document requested by Company to establish Company’s ownership of the Technology and to permit Company to obtain and retain patents, copyrights, trademarks and other indication of ownership, without charge to Company, but at no expense to me. If there is Technology that I developed before becoming employed by Company and to which I claim ownership, I have listed it here: ______________________________________________.
- Prior Agreements. I have provided Company copies of all agreements with previous employers under which I have agreed not to compete or otherwise agreed to limit the use of trade secrets.
- Employment. While I am working with the Company, I will devote my full time best efforts to Company’s business and will not engage in any other business or employment without the prior written approval of Company’s President.
- Post Employment Restriction.
(a) Definition. “Competitive Products” means a product or service sold by Company or competitive with a product or service sold by Company while I am an employee of Company.
(b) Non-compete Agreement. During the time that I am employed by Company and for a period of two years after my employment with Company terminates, I will not, without the prior written consent of Company:
(i) Design, develop, sell, manufacture, license, distribute or solicit orders for Competitive Products.
(ii) Affiliate as an owner, officer, director, member, manager, employee or agent with any business enterprise that designs, develops, sells, manufactures, distributes, licenses, or solicits orders for a Competitive Product.
(iii) Solicit any customer or employee of Company to discontinue the customer or employee relationship with Company.
I ACKNOWLEDGE THAT THE FOREGOING RESTRICTIONS ARE REASONABLE AND APPROPRIATE MEANS OF PROTECTING COMPANY’S PROPER INTERESTS, WHICH WILL NOT UNREASONABLY INTERFERE WITH MY ABILITY TO MAKE A LIVING.
- Injunctive Relief. I recognize that if I breach this Agreement, Company’s business will suffer irreparable harm and that remedies at law will be inadequate. I agree that in case of any breach or threatened breach of this Agreement, Company is entitled to immediate injunctive relief or a decree of specific performance of this Agreement, in addition to any other remedies provided by law and without being required to prove irreparable harm or special damages.
- Entire Agreement; Modifications. This Agreement is my entire agreement with Company with respect to its subject matter and supersedes any prior written or oral understandings pertaining thereto. My obligations under this Agreement may not be changed in whole or in part except by a written agreement signed by the President of Company and me and which specifically refers to this Agreement.
- Binding Effect. This Agreement may be assigned by Company in connection with any transfer or sale of its business, and shall inure to the benefit of Company and its successors and assigns. This Agreement is binding upon me, my heirs, personal representatives, successors and assigns.
- Severability. I agree that the provisions of this Agreement are fair and reasonable in light of my employment relationship with Company and the nature of Company’s business. Nevertheless, if a court of competent jurisdiction should invalidate any provision of this Agreement; all other provisions shall survive and remain valid and enforceable. If a court of competent jurisdiction should decline to enforce any provision on the ground that it is over broad or unreasonable, that provision shall be narrowed only to the extent required so that it may be enforceable under State law.
- Captions. Any captions and headings are purely for the convenience of the reader and shall not be used to interpret or construe this Agreement.
- Governing Law. The interpretation of this Agreement and the obligations hereunder are governed by the laws of the State of New Jersey.
ACCEPTED AND AGREED TO:
Date:______ ____________________________________
Employee Signature
ACCEPTED ON BEHALF OF:
COMPANY XYX
Date:______ By:________________________________
Title:________________________________
Company Records: What to Keep, What to Dump
A records retention schedule ensures that an organization keeps the records it needs for operational, legal, fiscal or historical reasons, and then destroys them when they’re no longer useful. You may base your records retention schedule on your own experience and research of legal mandates or on what other companies are doing.
Whatever your method, use your retention schedule as a guide, not as an executioner. Retain records longer if litigation, a government investigation or an audit seems likely. In the event that a legal action does transpire, immediately cease all disposal activities.
You have to know what you have and how long to keep it—legally and for your own business purposes—before you can establish an efficient records management system. That’s why it’s important to inventory your records and draw up a company retention schedule.
The retention schedule below reflects standard business practices. You must also consider state and local statutes of limitations as well as regulations of government agencies that pertain to your business. State retention statutes vary widely on tax, unemployment and workers’ compensation records, as well as on environmental and other requirements. Check with your state and regional authorities for details.
As an extra safeguard, have your CPA and your attorney review your records retention timetable before putting it into practice.
Timetable Tips
Whether you use the guidelines in this section or conduct your own research to establish a retention schedule, keep the following in mind:
- Don’t be a “just in case” hoarder; store records only for legal, operational or archival reasons.
- Retain and destroy documents systematically.
- Segment records according to a retention timetable.
- Don’t retain unscheduled temporary materials, such as drafts, reminder notes, work sheets or extra copies.
- Don’t hang onto documents just for their sentimental or public relations value. Information must earn its keep, like any other asset. A comprehensive record of the past that fosters a “company memory” can be an asset but be sure to minimize your legal liability while doing so.
When No Requirements Exist . . .
What can you do if a law does not state a specific retention period? This is not uncommon. There may not be a stated legal requirement for certain records, or the requirement may not include a specific retention period. You may have done a thorough search to locate certain records requirements but could not find any law addressing your particular documents. Or you may have discovered that certain records must be maintained, but you could not determine for how long. Statutes and regulations often contain a phrase, “The following records shall be maintained . . . ,” but they fail to tell you the retention period. Usually the phrase is interpreted as meaning “permanently” because there’s no permission given for destruction of the records.
How do you deal with this quandary? Under the Uniform Preservation of Private Business Records Act (UPPBRA), whenever a law does not specify a retention period, businesses should keep their records for three years. If you destroy them sooner, you risk subjecting your organization to legal problems. However, only eight states have adopted this act or something equivalent. Courts could certainly require you to hold records long enough to permit the state to monitor compliance with its regulations—a “reasonable” period of time. Based on federal records and the UPPBRA, a three-year retention period should be sufficient.
How long should you keep records if you cannot locate any legal requirements referring to them? Assuming your legal research was thorough, it is best to maintain the records for three years. You must, however, document your search effort and the assumptions you used to set the three-year period. Then, if you missed a legal requirement during your search, you have documentation to show the judge or regulatory agency that your organization had made a good-faith effort to comply with the law.
RECORD RETENTION GUIDE
KEY: “P” = Permanent. Otherwise, figures represent suggested number of years for retaining each type of record.
Accounting and Fiscal Years
Accounts, charged off 7
Accounts payable ledger 7
Accounts receivable 10
Accounts receivable ledger 10
Balance sheets 5
Bank deposit records 6
Bank reconcilement papers 8
Bank statements 8
Bills collectible 7
Bills of sale of registered bonds 3
Bill stubs 7
Bonds canceled 3
Bonds registered P
Bonds, sales or transfer 15
Budget work sheets 3
Building permits 20
Capital stock bills of sale P
Capital stock certificates P
Capital stock ledger P
Capital stock transfer records P
Cashbooks 25
Cash receipts & disbursement records 10
Cash sales slips 3
Cash slips 3
Charge slips 10
Check records 7
Check register 10
Checks, dividend 10
Checks, expense 10
Checks, paid & canceled 9
Checks, payroll 7
Checks, voucher 6
Checks, warrants P
Correspondence, accounting 5
Correspondence, credit & collection 7
Cost account records 7
Customer ledger P
Donations 7
Drafts paid 8
Earnings register 3
Entertainment, gifts & gratuities 3
Estimates, projections 7
Expense reports, departmental 7
Expense reports, employees 7
Financial statements, certified P
Financial statements, periodic P
Fixed capital records P
General cashbook 25
General journal P
General journal supporting papers P
General ledger P
Notes, canceled 10
Note ledgers P
Payroll register 7
Petty cash records 3
Plant ledger P
Profit & loss statements P
Property asset summary 10
Royalty ledger P
Salespeople commission reports 3
Stock ledger P
Tabulating cards & magnetic tape 1
Traveling auditor reports 15
Trial balance, accounts receivable 3
Trial balance sheets P
Uncollectible accounts 7
Work papers, rough 2
Administrative
Audit reports, internal 10
Audit reports, public & government P
Audit work papers, internal 6
Classified documents: control, inventories, reports 5
Correspondence, accounting 5
Correspondence, advertising 3
Correspondence, credit & collection 7
Correspondence, engineering & technical 10
Correspondence, general 3
Correspondence, personal 6
Correspondence, production 2
Correspondence, purchase 5
Correspondence, sales & service 1
Correspondence, tax 15
Correspondence, traffic 6
Forms control 5
Inventory cards 3
Inventory, plant records P
Organized charts P
Requisitions 1
Research reports 20
System & procedure records P
Telegram & cable copies 3
Telephone records P
Advertising
Activity reports, media schedules 5
Contracts 6 yrs. after termination
Contracts, advertising 6 yrs. after termination
Correspondence 5
Drawings & artwork P
Estimates 2
House organs P
Market data & surveys 5
Samples, displays, labels, etc. P
Tear sheets 3
Corporate
Annual reports P
Authority to issue securities P
Authorization & appropriations for expenditures 6 yrs. after termination
Bonds, surety 10
Capital stock certificates P
Capital stock ledger P
Capital stock transfer records P
Charters, constitution, bylaws & amendments P
Contracts, employee 6 yrs. after termination
Contracts, government 6 yrs. after termination
Contracts, labor union 6 yrs. after termination
Contracts, vendor 6 yrs. after termination
Dividend checks 10
Dividend register P
Easements P
Election ballots 20
Election records, corporate 10
General cashbooks, treasurers’ and auditors’ 25
Incorporation records & certificates P
Licenses, federal, state, local P
Permits to do business P
Records of mergers, consolidations, acquisitions, dissolutions &
reorganizations P
Reports to Securities and Exchange Commission P
Securities: documents of issuance, listing & registration P
Stock applications for issuance P
Stock certificates, canceled P
Stock, stock transfer & stockholders’ records P
Stockholder minute books, resolutions P
Stockholder proxies 10
Stockholder reports P
Voter proxies 15
Executive
Correspondence 2
Policy statements, directives P
Projects, ideas, notes P
Research reports 20
Speeches, publications 10
Insurance
Accident reports 11
Appraisals P
Claims, automobile 10
Claims, group life & hospital 4
Claims, loss or damage in transit 7
Claims, plant P
Claims, workers’ compensation 10
Expired policy, accident 3 yrs. after expiration
Expired policy, fidelity 3 yrs. after expiration
Expired policy, fire 3 yrs. after expiration
Expired policy, group 3 yrs. after expiration
Expired policy, hospital 3 yrs. after expiration
Expired policy, inspection certificates 3 yrs. after expiration
Expired policy, liability 3 yrs. after expiration
Expired policy, life 3 yrs. after expiration
Expired policy, marine 3 yrs. after expiration
Expired policy, property 3 yrs. after expiration
Expired policy, surety 3 yrs. after expiration
Expired policy, workers’ comp 3 yrs. after expiration
Legal
Affidavits 10
Charters P
Claims & litigation of torts & breach of contract P
Copyrights P
Mortgages P
Patents & related data P
Trademarks P
Manufacturing
Authorities for sale of scrap 3
Bills of material 5
Blueprints 30
Correspondence, engineering & technical 10
Correspondence, production 2
Credit memoranda 5
Credit ratings & classifications 2
Drafting records 8
Draftings & tracings, original P
Inspection records 5
Inventory records 7
Invoice copies 7
Invoices, received 7
Job records 10
Journals P
Ledgers P
Operating reports 10
Order register 6
Production reports 6
Quality control reports 5
Receipts, delivery 3
Reliability records P
Specifications, customer P
Stores’ issue records 3
Time & motion studies P
Tool control 5
Work orders 5
Personnel
Accident reports, injury claims, settlements 7
Applications, changes, terminations 3
Attendance records 4
Clock records 4
Correspondence 6
Daily time reports 5
Disability & sick benefits records 4
Earnings records P
Employee contracts 7
Employee service records P
Fidelity bonds 3
File, individual employee 3
Garnishments 7
Health & safety bulletins 4
Injury frequency charts 10
Insurance records: group, employee 6
Medical folders, employee 30 yrs. after termination
Paychecks P
Payroll records, after termination P
Pension plan P
Pension plan, applications P
Pension plan, claims P
Pension plan, correspondence P
Rating cards 5
Salary & rate changes 10
Salespeople auto records 2
Salespeople expense accounts 4
Salespeople performance records P
Time cards 7
Time tickets 7
Time tickets, receipted 7
Training manual P
Union (collective bargaining) agreements after termination P
Withholding, exemption certificate 3
Workers’ compensation reports 11
Plant and Property
Appraisals P
Damage reports 7
Deeds, titles P
Depreciation schedules P
Inventory records 16
Leases P
Maintenance & repair, buildings 10
Maintenance & repair, machinery 5
Plans & specifications P
Plant account cards, equipment records, historical folders P
Purchase, lease records 1
Sales 7
Space allocation records 2
Taxes P
Water rights P
Purchasing
Acknowledgments 3
Bids, awards 3
Contracts 6 yrs. after termination
Correspondence 5
Exception notices 6
Orders 7
Purchase orders 3
Purchase requisitions 1
Quotations 3
Receiving reports 6
Receiving slips 4
Vendors’ contracts P
Sales and Marketing
Claims (loss or damage) 5
Complaints 5
Contract progress reports 6 yrs. after termination
Contracts, customer 6 yrs. after termination
Contracts, representatives, agents, distributors 6 yrs. after termination
Correspondence 1
Discount rates 5
Guarantees, warrantees 6
Invoices, copies 6
Invoices received 7
Mailing & prospect lists 2
Market research studies & analysis P
Market surveys 5
Orders acknowledgment 4
Orders filled 8
Price lists P
Shipping notices & reports 4
Tax-exempt sales 5
Taxation
Agent’s reports P
Annuity or deferred payment plan P
Correspondence 20
Depreciation schedules 3
Dividend register P
Employee withholding certificates 8
Excise reports 5
Exemption status P
Inventory reports 16
Real estate 15
Sales & use P
Social Security P
Tax bills & statements P
Tax returns & working papers P
Traffic
Aircraft operating & maintenance 10
Bills of lading 3
Delivery reports 3
Drive vehicle inspection reports 3 months
Employee travel 1
Export declarations 4
Freight bills 5
Freight claims 5
Leases 6
Manifests 1
Receiving documents 5
Routing records 1
Shipping instructions 6
Shipping tickets 6
Title papers P
Tonnage summaries P
Tracer reports P
Vehicle operation & maintenance 4
Source: Records Management Handbook. Courtesy of Fellowes Inc., Bankers Box Storage Products; www.bankersbox.com.
_______________________________________
Excerpted from the book Taming the Paper Monster: Records Management, Compliance and File Security (Publication N247A), by the National Institute of Business Management. To order, call (800) 543-2055 or go to www.nibm.net/taming.
________________________
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Business Record Retention Schedule
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