Wednesday, March 12, 2014
Beware: Employer-Mandated Medical Examinations and Inquiries of Employees Are Strictly Limited under the Americans with Disabilities Act
When and under what conditions can an employer legitimately inquire about an employee’s health and/or require the employee to submit to a medical examination? Should an employer not know the correct answer to this question and make impermissible inquiries about an employee’s health and/or improperly require an employee to submit to a medical examination, the employee has a good basis to challenge the employer’s action under the Americans with Disabilities Act (“ADA” or the “Act”), 42 U.S.C. § 12101 et seq. Except under very limited circumstances, the ADA prohibits employer-mandated medical examinations and inquiries under 42 U.S.C. § 12112(d)(4)(A). Even experienced practitioners may find it surprising that § 12112(d)(4)(A) provides an employee with an independent cause of action for an employer’s violation, even where the employee is not disabled within the meaning of the Act. In short, the ADA protects employees from pointless inquiries, needless demands for medical examinations and other related harassment by their employer. Unfamiliarity with this portion of the ADA can result in litigation where the employer makes impermissible medical inquiries and/or demands that an employee submit to a medical exam.
The ADA provides:
Prohibited examinations and inquiries. A covered entity shall not require a medical examination and shall not make 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 a business necessity.
42 U.S.C. § 12112(d)(4)(A). (Emphasis added).
The Sixth Circuit Court of Appeals held that §12112(d)(4)(A) applies to both disabled and nondisabled employees. Lee v. City of Columbus, Ohio, 636 F.3d 245, 252 (6th Cir. 2011). Most importantly, the employer has the burden to demonstrate that a medical examination or inquiry is “job-related” and “consistent with a business necessity.” Kroll v. White Lake Ambulance Auth., 2013 U.S. Dist. LEXIS 72339 (W.D. Mich. May 22, 2013). Further, “[F]or an employer’s request for an exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.” Sullivan v. River Valley School Dist., 197 F.3d 804, 811 (6th Cir. 1999). (Emphasis added). The employer is restricted to determining whether an employee can perform “the essential functions of the job.” Id. at 811-12. In short, the employer bears the burden of proving that medical related inquires and/or demands for medical exams are legitimate and necessary based upon the employee’s ability to perform the job.
The Equal Employment Opportunity Commission (“EEOC”) issued an Enforcement Guidance on disability-related inquiries and medical examinations of employees under the ADA. (EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (July 27, 2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html). The Enforcement Guidance states that a disability-related inquiry or medical examination of a current employee may be “job-related and consistent with a business necessity” where an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” Id. The Sixth Circuit Court of Appeals held that a disability-related inquiry or medical examination of a current employee may be “job-related and consistent with a business necessity” when the employee requests a reasonable accommodation. Denman v. Davey Tree Expert Co., 266 F. App’x 377, 379 (6th Cir. 2007).
The ADA defines a “direct threat” as a “‘significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.'” E.E.O.C. v. Prevo’s Family Market, Inc., 135 F.3d 1089, 1095 (6th Cir. 1998) (quoting 42 U.S.C. § 12111(3); 29 C.F.R. 1630.2(r)). In considering whether an employee poses a direct threat, the Court should consider such factors as: “(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.” Id. (quoting 29 C.F.R. § 1630.2(r)).
With respect to an employee’s request for a reasonable accommodation, the Enforcement Guidance states that an employer may ask an employee for medical documentation to substantiate his or her request. The Enforcement Guidance articulates a much more measured approach, however, when it comes to taking the invasive step of requiring that an employee be examined by a health care professional of the employer’s (rather than the employee’s) choosing. The Enforcement Guidance states that, “if an employee provides insufficient documentation in response to the employer’s initial request , the employer should explain why the documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner. The employer also should consider consulting with the employee’s doctor (with the employee’s consent) before requiring the employee to go to a health care professional of its choice.” (See Enforcement Guidance).
With the above principles in mind, we now turn to how court decisions within the Sixth Circuit have applied them to specific fact situations. In the recent case of Kroll v. White Lake Ambulance Auth., 2013 U.S. Dist.LEXIS 72339 (W.D. Mich. May 22, 2013), the U.S. District Court for the Western District of Michigan granted summary judgment in favor of a defendant-employer on plaintiff’s §12112(d)(4)(A) claim. Kroll was employed as a part-time Emergency Medical Technician at defendant White Lake Ambulance Authority (“WLAA”). Id. at *3. Her job duties included driving ambulances and assisting paramedics with the medical care of the patients they transported. Id. Kroll began a tumultuous affair with a married co-worker. Id. at *4. During the relationship, which lasted approximately four months, other WLAA employees began sharing concerns about Kroll’s mental and emotional health with WLAA’s director and office manager. Id. at *4-5. Specifically, employees witnessed Kroll on her cell phone crying and also texting while driving the ambulance. Id. at *5-6. After seeking input from WLAA employees about Kroll’s emotional stability, WLAA’s director decided to arrange psychological counseling for Kroll. However, Kroll refused to attend the counseling. Id. at *6. After a confrontation at work between Kroll and a WLAA paramedic, the director advised Kroll that she would either have to attend counseling, or be fired. Kroll again refused to attend counseling and left work, never to return. Id. at *7-8.
Kroll filed a lawsuit alleging that WLAA violated the ADA when it required that she attend psychological counseling as a condition of her employment. In granting summary judgment in favor of WLAA, Judge Gordon Quist held that WLAA’s requirement that Kroll obtain psychological counseling was both job-related and consistent with a business necessity. Id. at *12. Specifically, Judge Quist held that driving the ambulance and assisting paramedics with administering medical care were the two most essential functions of Kroll’s job. Id. at *13. Thus, WLAA had a “significant basis” to question whether Kroll had emotional issues rendering her incapable of performing the essential functions of her job as an EMT because she was witnessed by other employees on her cell phone crying while driving a patient to the hospital and also texting while driving the ambulance. Id. at *12. Further, Judge Quist opined that the same evidence justified psychological counseling on the basis that Kroll posed a direct threat to herself and others while on the job. Id. at *14.
Contrast the U.S. District Court-Western District of Kentucky’s decision in James v. James Marine, Inc., 805 F. Supp. 2d 340 (W.D. Ky. 2011), in which the Court denied summary judgment on plaintiff’s §12112(d)(4)(A) claim. James was employed as a welder at defendant James Marine, Inc. (“James Marine”). Id. at 343. Slightly more than a year after he was hired, James learned that he had a malignant brain tumor which required him to be off of work for approximately three months. Id. Later, James suffered a seizure while on the job, which caused him to miss another six weeks of work. Id. at 343-44. Upon his return to work, James was transferred to the Fab Shop, which required him to weld and to operate a cutting torch and a metal press. Id. at 344.
While working a shift at the Fab Shop, James felt intense pain in his back which caused him to seek treatment at the emergency room and later receive twelve “trigger point” injections in his back from his physician. Id. at 344. After taking two days off of work, he returned with notes from his physician advising James Marine that he was fit for duty. Id. Nevertheless, James Marine’s safety director advised James that he would be required to complete a physical at Occunet, a third-party clinic of James Marine’s choosing, prior to returning to work. Id. James was subsequently advised by Occunet that he could not return to work until he was certified as seizure-free for six months. Id. James’ physician, Dr. Moots, subsequently wrote two letters again advising that James was able to return to work. Id. at 344-45. Nevertheless, Occunet told James that its physician did not “believe” that Dr. Moots’ letters certified that James was seizure-free for six months. Id. at 345. James, who remained off of work, attempted to contact James Marine’s human resource director and safety director on multiple occasions thereafter to inquire about his employment status, to no avail. Id. James testified that he believed that his employment was “in limbo” during this time period and that he did not understand why he had not been returned to work yet. Id. Approximately seven months after he left work because of back pain, James was advised by James Marine that his employment was being terminated because he had exhausted his medical leave under the Family and Medical Leave Act. Id.
James later brought suit in federal court alleging, inter alia, that James Marine violated the ADA by requiring him to submit to a medical examination prior to allowing him to return to work. Id. at 345-46. The Court held that it was James Marine’s burden to “demonstrate either that [James’] ability to perform essential job functions was impaired or that [he] posed a direct threat.” Id. at 348. The Court opined that a genuine issue of material fact existed as to whether James Marine sending James for a medical examination was job-related and consistent with a business necessity. Id. at 349. The Court held that, since James presented multiple notes from his physicians indicating that he could return to work, a question existed as to whether it was reasonable for James Marine to believe that James’ ability to perform essential functions was impaired or that he posed a direct threat because of his back injury. Id. Significantly, there was no evidence in the record showing that James Marine ever specified why James’ physician notes were insufficient or that it gave James an opportunity to provide missing information, nor was there any evidence that James Marine consulted with James’ physicians prior to sending him for a medical examination at Occunet.
In sum, it is imperative that employment lawyers have § 12112(d)(4)(A) of the ADA on their radars, regardless of whether they represent employees or employers. Failing to identify this potential claim can lead to either missing a potentially valuable cause of action for an employee-client, or exposing an employer-client to liability under the Act. Fortunately, there are several resources available, including the Enforcement Guidance published by the EEOC, which can assist practitioners in recognizing and navigating this important section of the ADA.