MAY 2019 • FOGHORN 27 LEGAL employee may be [conducted] when an employer has a reasonable belief, based on objective evidence, that: (1) an em- ployee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. The first step for a marine employer in exercising its right to assess ability to safely perform the job, is the develop- ment of clear and documented descrip- tions of the essential job functions, and the physical standards of health reason- ably necessary for performance, against which day-to-day capability can be measured. The ADA offers marine employers a substantial opportunity to set forth the essential functions and presumptive physical requirements for any marine job, stating that “con- sideration shall be given to the em- ployer’s judgment as to what functions of a job are essential . . . if an employer has prepared a written description” in advance, in which case the “de- scription shall be considered evidence of the essential functions of the job.” 42 USC 1211 (8). Stated otherwise, employers enjoy a measure of pre- sumptive credibility as to the physical job requirements they require, but only if embodied in a document established prior to the advent of any capability question. Employers failing to establish clear physical job requirements miss an important defensive protection op- portunity. By example, employers are free to establish that an employee that has used any non-prescription drug that “may cause drowsiness” within four hours of a shift start, is presumed unable to perform job functions. Other requirements such as an ability to comply with standing time, ability to work in heat or cold, climbing and lifting requirements are all examples of allowable requirements that an employer may reasonably establish, to name just a few. Thus contrary to the sometimes stated belief, an employer may, in fact, probe deeply into an employ- ee’s medical conditions – or perhaps more accurately – those medical aspects directly relating to the ability to do the essential job function when there is any objective concerns. By example, if the employer has a rule against service while on attention- diminishing medication, employers are free to inquire if such a medica- tion was taken. If a person seems “not himself,” the employer may note the behavior and ask whether there is any medical condition, treatment or medication that is impacting cognitive or physical ability. An employer can probe the nature, duration and extent of any condition that might affect work performance or availability. In fact, the “don’t ask” list is very short: the employer may not probe into the specific treatment or medications, but can ask questions relating to the impact of any condition or medication upon SCHEDULE A DEMO W W W . S T A R B O A R D S U I T E . C O M EFFORTLESS RESERVATIONS + TICKETING for Passenger Vessels and Water Sports EFFORTLESS CONTRACTS for Charters, Schools, and Tour Groups Integrated online, phone and walk-up bookings Automated confirmation, reminder and follow-up emails Marketing and Search Engine Optimization (SEO) Personalized set-up, training and support included Custom PDF contracts with fully-trackable versioning Support for private charters, schools and tour groups Detailed reports for event planning and financial tracking Resource tracking for multi-use inventory Manage your entire business from a single, integrated platform Public Tickets & Private Charters ...together at last