42 U.S.C. §12102

Medical Licensing Boards, Physician Health Programs, and the Lack of ADA Compliance: an Opportunity for Plaintiff Lawyers

July 13, 2019 by William Goren 6 Comments

Before getting started on the blog of the week, some housekeeping matters. First, my blog was late this week. My daughter came home from camp on Monday, and so my time is different than it usually is. Second, starting tomorrow, my family will be in Chicago visiting both sides of the family. So, no blog entry this coming week.

Today’s blog entry talks about the FSMB (Federation of State Medical Boards), and their policy on physician impairments, here, which are typically applied to medical licensing boards and to PHPs. By way of full disclosure, I have consulted on cases involving healthcare professionals who have had their licensing called into question on the basis of their disability. Those consulting efforts either got the licensing authority to back off or led to more individualized remedies. About two months ago, I was contacted by a couple of physicians, and we have been exploring how the ADA applies to the universe of Physician Health Programs and medical licensing boards. It turns out it is incredibly complicated. Eventually, we decided to focus on the FSMB Policy on Physician Impairments, which is used by PHPs to justify their actions using the imprimatur of the Medical Licensure Boards (MLBs). Physician Health Programs exist in 48 states and are tightly linked to the medical boards that enforce their actions. Their ostensible purpose is to restore impaired physicians to a non-impaired status. Here is the rub. It is quite clear that the FSMB policy was not drafted with the ADA in mind even though it is a 2012 document. So, the ADA would have been around for many many years at the time of this document. Also, the amendments to the ADA would have been around and in effect at the time of this document as well. When I went through the policy, I found 36 different instances of ADA noncompliance and/or provisions that are extremely problematic under the ADA. The physicians I have been working with on this project and myself decided a piece detailing all the 36 issues overwhelms a blog entry. So, we are going to save that for an article we will be publishing in a peer-reviewed journal to be determined. With respect to a blog entry, we decided that talking about the general concerns I had with the policy and then exploring an actual case would work better. Turns out, there is an actual case we can explore. I had a delightful conversation with Susan Haney, M.D., and she wrote about her case here. This article won a 2019 EXCEL award for best editorial/opinion piece in a magazine. So, we will use her article as a springboard after we go over some general concerns. As usual, the blog entry is divided into categories and they are: overarching theme of the FSMB policy on physician impairments; Key definitions; Dr. Haney’s case study; other case studies mentioned in Dr. Haney’s article; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Overarching Theme of the FSMB Policy on Physician Impairment

If there is an overarching theme of the FSMB policy on physician impairment it is this: physicians who are impaired or who have any potential for impairment must be fixed and restored at all costs before they can practice. I have a real problem with this. It goes directly against the underlying principles of the ADA. Whether a person chooses to have their disability fixed or not is entirely up to them. The ADA is all about integrating people with disabilities into the mainstream environment, and NOT “fixing” their disabilities. It accomplishes its goal by forcing various entities to engage in reasonable accommodations/modifications for the person’s disability. As we know, the reasonable accommodation/modification obligations must be done unless there is an undue hardship (title I) or an undue burden or fundamental alteration (title II and title III). So, the ADA is very much about working with the individual as you find them. That is not what is going on with this policy at all. Wait a minute, you might say. Maybe, this is just your disability rights perspective running amok. My response to that is the policy has a nondiscrimination clause in it. However, tellingly, people with disabilities are completely absent from that clause. Taking that and the clear lack of knowledge about what the ADA requires in terms of how the provisions are written, the only conclusion I come up with is that, according to the FSMB, disability is just wrong and needs to be fixed or cured at all costs. Like I said, the ADA doesn’t work that way nor should it.

Key Definitions

It isn’t the reasonable accommodation/modification piece that is the problem with the FSMB policy on physician impairment. Where the policy consistently runs into trouble is the lack of awareness of key ADA definitional terms. In particular, the policy clearly does not take into account that a person has a disability under the ADA if they have a record of a physical or mental impairment that substantially limits one or more major life activity or if they are regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(B),(C). Also, the policy runs into serious problems with respect to two other definitional issues. First, both title I and title II of the ADA talk about how you have to be qualified as well as a person with a disability in order to be protected by the ADA. The definition of qualified is a bit different from title I and title II. Title I, as we know, focuses on the essential functions of the job and whether the job can be performed with or without reasonable accommodations. Title II, as we also know, focuses on essential eligibility requirements and whether those requirements can be met with or without reasonable modifications. Since medical boards are title II entities, medical boards would have to be concerned about title II, but since much of what is going on here is a fitness for duty, Medical Boards and PHPs also need to know of title I’s qualified definition as well. With respect to the PHPs, the organizations actually doing the work of assessing a physician’s particular situation, the PHPs would have to be aware of title III of the ADA, which as we discussed here, does not but should contain an implicit qualified definition within it. Also, since they are doing the specific work of fitness for duty, they should be aware of qualified under title I of the ADA. Finally, the FSMB policy really breaks down when it ignores the ADA concept of direct threat. As we have discussed many times in this blog, direct threat in both title I and in title II and title III are essentially the same. However, the key difference is that direct threat under title I applies to self and others. On the other hand, direct threat under title II title III only applies to a direct threat to others. The direct threat analysis becomes very complicated in this context because you have title III and title II entities doing fitness for duty exams on behalf of a title II entity with respect to a physician who probably, but not always, works for a title I entity. As I say, going into depth as I have done over the last couple of months, becomes incredibly complicated. Every time we thought we had a handle on it, other items opened up. As I am fond of saying the ADA is a milewide and a mile deep. At any rate, we are going to save the details for an article to be published later.

III

Dr. Haney Case Study

The case study we are exploring today can be found here. Let’s go through the key points of the article. Also, as I mentioned above, I had an hour conversation with her last week, so I may bring additional facts to bear. She has given me permission to share all of this and actually encouraged me to do so. I also shared this blog entry with her prior to posting this online. Also, please note that the facts are taken as true from the article and from what she told me in her conversation. The actual facts in their entirety are surely more complicated.

Haney is a person with recurrent episodes of major depression. Until about 2008, she managed her depression privately without interference or oversight from any medical licensing board. She was never hospitalized because of mental illness and never missed a day of work due to mental illness. At the time of the occurrence, she was working for an employer of 15 or more employees (an entity covered by title I).
While on vacation in March 2006, she had a severe asthma attack requiring an extended course of a high dose of prednisone. Prescribers of prednisone and many patients know that mild dose-dependent mood and cognitive changes happen frequently during the therapy and that more severe psychiatric side effects are occasionally seen at a higher dosage level. In her case, the prednisone caused her to become clinically manic for the first time in her life and she realized that her judgment was becoming impaired. So, she reported her illness to the employer in order to arrange for a brief medical leave of absence (very unclear whether FMLA leave was properly designated at the proper time). She also contacted her primary care physician who had appropriately prescribed the prednisone as well as her personal psychiatrist and reestablished care with the previous psychotherapist. So far so good. Absolutely nothing wrong with what she did so far.
After discussing the matter with a colleague, she asked her employer whether she should preemptively report her illness to the state medical board in order to keep her professional credentials unblemished by rumors about the cause and severity of her symptoms. Big mistake here. She had already requested and was granted a leave of absence by the employer. Accordingly, the employer was on notice that they were dealing with a disability. Also, if the leave was FMLA leave and the employer had a certification policy in place, the employer could have asked Dr. Haney upon expiration of the leave to get certified as to whether she could perform the essential functions of the job at the end of the leave. Even if it was not FMLA leave, the ADA would have kicked in for the employer. If it was not FMLA leave, the employer would have had the right to ask for a fitness for duty exam so to speak to determine whether she could perform the essential functions of her job with or without reasonable accommodations because the employer would probably be able to show that such an exam was job-related and consistent with business necessity (we discussed job-related and consistent with business necessity many times before in our blog, such as here).
The minute she reported the matter to her employer, the employer required her to obtain written permission from the Oregon Board of Medical Examiners (BME) before permitting her to resume work. The employer made a mistake here as the employer immediately regarded her as having a disability. As mentioned above, if the employer was concerned about her ability to do the essential functions of the job with or without reasonable accommodations, it could have insisted on a medical exam to assess that since it probably would be able to show that such an exam was job-related and consistent with business necessity. That exam would be a narrowly focused exam to assess whether the person could do the essential functions of the job with or without reasonable accommodations without being a direct threat (see this blog entry for example). Mandating approval from the Oregon BME is a strong indication that the employer regarded her as having a disability.
She immediately called the BME’s physician health program, hoping to obtain confidential help. She was told that without a chemical component, they were not able to assist her. Instead, they recommended that she discussed this matter directly with the BME’s Medical Director,, a retired general surgeon. He explained to her that the only way she could get written permission authorizing her return to work was to open a formal board investigation into her fitness to practice medicine. Thinking she had nothing to fear, she went all in. As she realizes now, big mistake. While the Medical Board and the PHPs may not realize it, they are subject to title II (medical board and possibly the PHP), and title III (the PHP), of the ADA. Accordingly, any investigation should have been narrowly focused on the concern raised, which is not what happened here, as you will see below. Failure to conduct a focused investigation created ADA regarded as claims.
During the four month investigation, the BME would not permit her to return to work. The investigator successfully discouraged her from seeking legal assistance because of the potential for prolonging the investigation and further delaying her return to work. The BME’s staff would not allow her to appear in person or to testify in her own defense. I am not going to get into the due process claims that may be here, but I will say getting ADA knowledgeable legal counsel involved in this process as early as possible is absolutely critical. Also, getting licensing counsel involved as early as possible in this process is absolutely critical. If such attorneys had gotten involved, they may have been able to work with the investigators to make clear to them that anything beyond a narrowly focused investigation would activate regarded as claims under the ADA. Such advocacy may have gotten the BME and the PHPs to think twice about conducting a far-reaching investigation.
At the conclusion of the investigation, the BME issued a nondisciplinary public corrective action order effectively announcing her mental illness to the general public. The order required that she continue psychiatric care, maintain a physician-patient relationship with the primary care physician, and refrain from the abuse of drugs or alcohol, all of which she had been doing. The order was published in the quarterly newsletter and picked up and published by her local newspaper as well as made available on the BME’s public website despite her objections. She was also required to enroll in a 12 step addiction treatment program despite the fact that she does not have a substance use disorder. I am not a privacy attorney. Accordingly, I can’t go into whether any of those kinds of laws were violated. I do know that privacy laws vary widely from State to State. I can say that what you have here is regarded as claim in all kinds of ways. Also, there seems to be a complete lack of individual analysis as to the remedy needed. For example, being forced to enroll in a 12 step program regardless of whether an individualized analysis would suggest that was a suitable program for her is very problematic. If the ADA requires anything it is an individualized analysis.
Publication of the order was not based upon any actual threat that her illness both to the general public but rather was a standard policy. This is a real problem because direct threat under the ADA, which we have discussed many times in our blog entries, such as here, is a completely different animal and a term of art that the BME and the PHPs seem to be completely unaware of.
When she attempted to assert her right to privacy, autonomy, religious freedom, and appropriate medical mental health care, the BME threatened her with emergency suspension of her license unless she fully complied with the PHP ordered program. Couple of things here. First, no mention of the ADA being pursued and that should have been done. Second, a variety of laws have retaliation provisions in them. Third, two sets of attorneys need to be immediately involved in these things (licensing counsel who understands how the licensing system in that State works and counsel with a comprehensive knowledge of the ADA). The two together, if my experience is any guide, can be quite effective. Each State has so many quirks with their licensing system and the personalities involved and the ADA issues here are so complex, that you really do need two attorneys working together to deal with the issue.
In late 2012, the Ninth Circuit in Haney’s case, held that the State Medical Review Board was entitled to absolute immunity from civil suit for the quasi-judicial and quasi-prosecutorial acts. Pointedly, that decision said that injunctive relief would have been possible but Dr. Haney did not allege any facts showing that injunctive relief was called for. The absolute immunity piece I have not seen before, and my first reaction is that part of the opinion is an outlier. Also, it can be debated whether the acts at issue were quasi-judicial/prosecutorial in nature. I don’t see how a state entity or even a private entity, even if they are acting as a state actor, would have absolute immunity from a federal lawsuit, assuming federal claims were involved. Second, it is important to remember that injunctive relief and attorney fees are a very powerful tool even if it is not damages.
In 2007, she filed an independent complaint with the US Department of Health And Human Services Office of Civil Rights alleging violation of her civil rights under the ADA by the BME. Under pressure from both her civil suit and a Health and Human Services investigation, in mid-2008, the BME voted to allow her to withdraw from the PHP ordered program in good standing. Moral of the story: lawyers can be very helpful at any stage of the process, but the earlier you get them involved, the better.
She ultimately returned to full-time work as an emergency physician with an unrestricted medical license. However, as a consequence of the sanctions and the publication of her private medical history, she has been turned away by literally dozens of potential employers and credentialing bodies because she no longer has a clean record. All kinds of things here. First, there may be claims against the potential employers. The question for the employer is can she do the essential functions of the job with or without reasonable accommodations and is not a direct threat to others. If the employers are not giving her a chance to explain what happened, are the employer then regarding her as having a disability? If the employers have a process of screening out people without a clean record from the BME and the PHPs, are they involved in a policy practice or procedure that screens out persons with disabilities in violation of the ADA? They just might be.
She also informed me that she is under PHP monitoring basically for the rest of her career. One wonders if such monitoring does not create a regarded as claim that might lead to a future injunctive relief filing.

Other Case Studies Mentioned by Dr. Haney in Her Article

For purposes of this section, all facts are taken from Dr. Haney’s article and are taken as true. The actual facts will of course be more complicated.

In 1998, a New York physician was initially denied a California state medical license due to his self-disclosed history of mental illness. After California refused to license him, New York revoked his license there as well. After considerable outcry from disability rights advocacy groups, he was eventually granted a probationary license in California, subsequently unrestricted, where he currently practices. I have seen this before where a person with a record of a disability that is being completely managed is gone after by licensing boards. The focus, such as we discussed here, needs to be on behavior and not on the record of the disability. If you take adverse action based upon the record and not upon the behavior, that is disability discrimination.
In 2004, a Washington physician published her first hand account of working with bipolar. 10 years later, that Physician was sanctioned by her medical board following a retaliatory complaint from a former patient arising from a custody dispute over a dog. I don’t know the facts, but sounds like a potential “record of,” claim to me.
Physicians with any history of mental illness may be automatically assumed by the medical licensing board to have an occupational impairment based simply upon their diagnosis. In fact, one of the provisions in the FSMB policy on physician impairments very much suggests this as a possibility. Automatically assuming a physician is a direct threat to others without conducting a focused individualized analysis relying on the most current medical knowledge and/or the best available objective evidence is disability discrimination.

Takeaways

Clearly, licensing boards and PHPs are in need of knowledgeable ADA counsel reviewing their operations and this particular policy. As I mentioned, expect a paper on this at some point. In the meantime, an opportunity exists for plaintiff attorneys to get fees.
Any physician going into this system needs to get licensing counsel and an attorney with a comprehensive knowledge of the ADA involved immediately. Do not wait. The sooner appropriate attorneys are involved, the more likely through the use of extremely knowledgeable licensing and extremely knowledgeable ADA counsel, the train will be able to be stopped. Also, the more likely resources will be available to pay for the necessary substantive expertise
Louise Andrew MD JD and Ron Chapman JD have put out a nice little publication on do’s and don’ts with respect to this whole PHP system.
This stuff is all really complicated. PHPs are generally 501(c)(3) organizations. However, as a service establishment, they are subject to title III of the ADA per 42 U.S.C. §12181(7)(F). Where an entity covered by title III of the ADA violates the ADA, the plaintiff can get injunctive relief and attorney fees. Damages are not a possibility. With respect to the medical licensing boards, which are state entities, if a showing of deliberate indifference, which we discussed here, can be made, then damages are available. Also, if the title III entity takes federal funds, then damages are in order as well under §504 to Rehabilitation Act.
With respect to damages, that may be a tough fight for a couple of reasons. First, sovereign immunity or other immunities may be in play. As we have discussed many times before, such as here and here, sovereign immunity is an incredibly complicated area because the equal protection class that persons with disability fall into is never fixed. Also, whether a State has waived sovereign immunity will vary from State to State. Second, even though PHPs are title III entities an argument exists under this case that PHPs are state actors. As such, they would be subject to damages under title II of the ADA. Unclear whether a state actor, a PHP, would be able to avail themselves of sovereign immunity. Regardless, sovereign immunity does not protect against prospective injunctive relief claims.
The employers of doctors are not off the hook either. Under title I of the ADA should an employer have reason to believe through behavior an issue is involved with respect to whether that physician can do the essential functions of the job with or without reasonable accommodations, they have the ability to insist on a medical exam if they can show that the medical exam is both job-related and consistent with business necessity. Automatically referring a physician into the PHP system, may wind up running the employer into a regarded as claim. If there is no behavior and the employer refers someone with a record of a disability into the system, that is problematic as well. Finally, were an employer to order a medical exam based on an anonymous tip, they may run themselves into problems, as we discussed here. Of course, medical licensing boards and PHPs are not title I entities, but the principle is instructive with respect to ADA compliance.
The PHP evaluations are comprehensive, but why? Performing a comprehensive evaluation in every case leads to regarded as claims. For that matter, so does the lack of an individual analysis.
Do look for a paper, but since it will be peer-reviewed, it may take some time for that to be published.
The sooner the FSMB and PHPs can understand the ADA and get away from fix a disability at all costs mentality, the less liability they are going to have.
Not all physicians are employees. For those physicians who are not, how does the ADA apply to them as title I of the ADA does not apply because they are not an employee. So, what mechanism exists for ADA protection for such individuals. First, there is this case, which holds a physician independent contractor can have a claim under title III. Second, since medical licensing board and PHPs are covered by title II (MBE), and by title III and possibly title II (PHP), fitness for duty is involved, I would argue title I’s rules with respect to otherwise qualified/qualified must apply.
There may be overlapping regulatory jurisdiction depending upon the entity involved. For instance, you may see Health and Human Services, Department of Justice, or the EEOC all having jurisdiction depending on the situation.
If a lawyer representing a physician headed into or in the PHP process already is not using the ADA in his or her advocacy on behalf of the client, then per this blog entry , that lawyer, in my opinion, is committing legal malpractice.
Did I say legal counsel legal counsel legal counsel with comprehensive knowledge about the ADA is critical. As soon as possible is important as unless a disability rights advocacy group takes on the matter, any representation may be hourly since damages can be very uncertain with sovereign immunity and other immunity defenses. A physician also is more likely to have resources early on in the process. Also, it is possible that your malpractice insurance may or may not offer coverage. On this, the physician may need an insurance coverage attorney to argue over any coverage distinctions based upon disciplinary proceeding v. assessment of an illness. At any rate, exhausting the possibility of malpractice insurance coverage is worth exploring as such coverage could make a huge difference to the physician.

Anybody Remember Sean Elliott?

May 28, 2019 by William Goren Leave a Comment

I have long been interested in the ADA and how it applies to sports. In the very first edition of my book in 2000, I talked about the hypothetical of what would happen if Sean Elliott, who underwent a kidney transplant from his brother in 1999, was given grief when he returned to professional basketball. For those of us who don’t know about Sean Elliott, he had an absolutely fabulous career at the University of Arizona, where believe it or not, says Wikipedia anyway, he is still the leading scorer after all these years. He then went on to an excellent career in the NBA where he won championships and made numerous All-Star teams. He spent his career with San Antonio at first, then Detroit, and then back to San Antonio. Currently, he is a game analyst for the San Antonio Spurs. In my original edition of Understanding the ADA, I talked about how to analyze the situation where a professional basketball player had one functioning kidney and was given grief. That got into a discussion of playing time, direct threat, among other things. Now, history repeats itself with the case of the day, Hammond v. University of Southern Mississippi, a November 2018 decision from the Southern District of Mississippi. As usual, the blog entry is divided into categories, and they are: facts, court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff was a student and football player at the University of Southern Mississippi, and he only has one kidney. According to Plaintiff, USM’s football staff enticed him to transfer to USM by offering a full scholarship if he worked his way onto the team’s two-deep roster. After Plaintiff transferred, he received a physical evaluation at USM’s Student Health Services Center. The report noted that Plaintiff had only one kidney but cleared him to play without restrictions.

During a team practice, Plaintiff mentioned to one of the trainers that he only had one kidney. The trainer immediately removed Plaintiff from practice and took him to the team physician. The physician did not clear Plaintiff to play, citing the potential liability to USM if he were injured. Plaintiff sought a second opinion as permitted by USM’s Sports Medicine Policies and Procedures, and his nephrologist stated that no restrictions were necessary. Plaintiff also offered to execute a waiver of liability, but USM would not allow him to play. Plaintiff filed this lawsuit against USM in the United States District Court for the Middle District of Louisiana. He asserted, among other things, claims of discrimination under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Defendant filed a Motion to Dismiss.

Court’s Reasoning Denying the Motion to Dismiss The §504ClaimAndTitleIIClaim

Under 42 U.S.C. §§12102(1),(3)(A), for a regarded as claim, a plaintiff is only required to establish that the defendant knew of the impairment and withheld public services or benefits because of it.
A person with one functioning kidney has a physical impairment as contemplated by the ADA.
The allegations, which must be accepted as true at the motion to dismiss stage, are sufficient to satisfy that burden. In particular: 1) the head athletic trainer removed the plaintiff from practice after learning he had only one kidney; 2) defendant’s team physician would not clear him to play football because he only had one kidney; 3) the head athletic trainer continued to hold him from practice after receiving the report from his nephrologist because the head athletic trainer believed that playing football with one kidney posed a liability issue for the school and a danger to plaintiff’s health; and 4) defendant’s athletic department told other school that he did not pass the physical because he only had one kidney so the plaintiff had trouble landing somewhere else.
University of Southern Mississippi also claimed sovereign immunity, but the court was having none of it because the plaintiff also alleged §504 violations. If an entity receives federal funds, that entity waives sovereign immunity in a suit for damages under §504 of the Rehabilitation Act. So, since the two laws (§504 and title II of the ADA), are virtually identical except for causation, it is not necessary to address the question of whether sovereign immunity applies to the title II claim when it doesn’t to the §504 claim.

III

Takeaways

If one tries to give a hypothetical as to what a regarded as case would look like, you can’t do much better than this one.
Certainly, a person with one functioning kidney has a physical impairment. A person with a one functioning kidney operates in the same way pretty much as a person with two. It would be an interesting question as to whether such a person would have an actual disability. It is certainly possible that is the case, but it wasn’t necessary to visit that question here.
The seminal case on direct threat is Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002). In that case, the Supreme Court said that any direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment has to be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions.
DOJ’s title II regulations, 28 C.F.R. §35.139, essentially adopt the Chevron formulation. However, unlike the EEOC regulations on direct threat, the title II and title III direct threat regulations put out by DOJ only apply to direct threat to others and not to self. So, in this case, University of Southern Mississippi appears to have not only regarded the plaintiff as having a disability but also made a determination that the person was a direct threat to himself. That presents a problem because the DOJ regulations do not factor in direct threat to self; they only factor in direct threat to others. It certainly does not seem like the plaintiff was a direct threat to others.
Even assuming a title II anything can argue that the ADA would exclude someone from participating in its programs if they were a direct threat to self, there seems to be a question of fact here as to whether the University of Southern Mississippi relied on the most current medical knowledge and/or the best available objective evidence when making its determination. Again, it is certainly not a foregone conclusion, that the direct threat to self defense even exists because the University of Southern Mississippi is a title II entity, and this is not an employment situation.
Colleges and Universities have been fighting tooth and nail that their division I men’s football and basketball athletes are not employees. Here, if the plaintiff was an employee, that would activate the direct threat to self-defense. On the other hand, it would create all kinds of problem for the college or university that they probably don’t want to deal with.
Liability risk isn’t the issue, rather the issue is whether the plaintiff is a direct threat to self or others (if title I), or whether they are a direct threat to others (title II and title III). In a way, this case reminds me of the case, which we discussed here, where the company had a 1% rule with respect to whether a person would be able to do a job with respect to future injuries being possible. The ADA and Rehabilitation Act do not work that way. They both require an individualized analysis using the most current medical knowledge and/or the best available objective evidence before reaching a conclusion that a person is a direct threat.
The case is now finishing up the discovery stage. I am sure the defendant’s motion for summary judgment will be coming before too long.
If I am the plaintiff, I would move to exclude any evidence about direct threat to self since this is a title II case, and therefore, not relevant. It bears noting that the original direct threat case was a Rehabilitation Act case involving direct threat to others and not to self.

Issues Relating to Medical Exams

September 25, 2018 by William Goren Leave a Comment

I did not blog last week, but I have a good excuse. Last week, was the Jewish day of atonement, Yom Kippur, and my daughter was also on fall break. For those who were celebrating last week, I hope your holidays went well. My daughter is now back in school, and so I am ready to get back to it.

Today’s blog entry is actually a two-for-one. We will explore the issue of medical exams both in terms of when they can be done and whether you can ask the employee to pay the cost of the medical exams. In our first case, EEOC v. BNSF Railway Company, we visit the question of whether a prospective employer can force a person with a disability to pay for the cost of a medical exam, in this case an MRI. In the second case, In the Matter of Paul Williams, Township of Lakewood, we visit the question of whether an anonymous tip is sufficient to require an employee to undergo a medical exam. As usual, the blog entry is divided into categories and they are facts, court’s reasoning, and takeaways for each case (a total of six different categories). Of course, the reader is free to read any or all of the categories.

BNSF Railway Company Facts

Holt received a conditional job offer from BNSF Railway Company for the position of Senior Patrol Officer contingent on his satisfactory completion of a post-offer medical review. During that medical review, he disclosed that he had injured his back four years before when he suffered a two-level spinal disc expiration. His primary care doctor, his chiropractor, and BNSF’s subcontractor doctor hired to examine him all determined that he had no current limitations with his back and found no need for follow-up testing. Even so, BNSF demanded that he submit an MRI of his back at his own cost, which would have run him $2500 since insurance would not cover it, or it would treat him as having declined the offer. Since he was in bankruptcy at the time, he did not obtain an MRI. As a result, BNSF revoked the job offer.

At the District Court level, the court held that the EEOC had shown that BNSF had regarded Holt as having a disability due to his back injury, that he was qualified for the job, and that BNSF had discriminated against him by requiring an MRI because it regarded him as having a disability. It also held that there wasn’t sufficient evidence to support any affirmative defense and granted partial summary judgment to the EEOC. The parties then reached an agreement on the amount to be awarded for damages, but BNSF did not waive its appellate rights and did in fact appeal. The District Court also entered a nationwide injunction against BNSF mandating that BNSF bear the cost of procuring any additional information it deemed necessary to complete a medical qualification evaluation. The injunction also required BNSF if they chose not to procure additional information, to complete the medical examination process using medical information it had in order to make a determination about whether the applicant was medically qualified for the job for which he received the conditional job offer.

BNSF Railway Company Court’s Reasoning

Proving a prima facie case a means showing that Holt: 1) had a disability as defined by the ADA; 2) was qualified for the position as defined by the ADA; and 3) that BNSF discriminated against Holt because of his disability.
42 U.S.C. §12102(1)(C) provides that a person is regarded as having a disability where he or she can establish that an adverse action occurred because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limited or is perceived to limit a major life activity.
It is no longer necessary to show that the impairment had to be perceived to substantially limit a major life activity for discrimination to be actionable under the regarded as definition. So, all the EEOC had to show is that Holt had an impairment and not that the impairment was substantially limited.
A plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have an impairment and that the impairment was not transitory or minor.
While physical or mental impairment does not appear in the ADA itself, the EEOC at 29 C.F.R. §1630.2(h)(1) has defined an impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
By requesting an MRI because of his back condition and conditioning the job offer on the completion of the MRI at Holt’s own cost, BNSF assumed that he had a back condition disqualifying him from the job unless he could disprove that proposition. Further, in rejecting his application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. Therefore, BNSF chose to perceive him as having an impairment at the time it asked for the MRI and at the time it revoked the job offer.
Interpreting the ADA so that the definition of perceived impairment includes situations where an employer assumes an employee has an impairment or disability is consistent with the ADA as amended mandate that the definition of disability is construed broadly in favor of persons with disabilities.
Requiring an applicant pay for an MRI or lose his or her job offer because the applicant has a perceived back impairment is a condition of employment that imposes discriminatory conditions on a person with a perceived impairment. Further, considering the cost of MRIs, requiring an MRI as a condition of employment will for many individuals mean disqualifying them from participating in the process.
42 U.S.C. §12112(d)(3) does not authorize an employer to further burden a prospective employee with the cost of the testing regardless of how necessary the testing may be.
Where an employer requested an MRI at the applicant’s cost only from person with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability. Such a requirement effectively precludes many applicants and directly contradicts the ADA’s aim to increase opportunities for persons with disabilities.
While there is nothing wrong with requiring additional follow-up testing, it is quite a different kettle of fish to require that the additional follow-up testing be done at the applicant’s expense. Imposing such a requirement limits the general protections of the ADA far beyond the necessary implications of what is allowed the ADA medical testing scheme.
The ADA already puts financial burdens on the employer by requiring them to pay for reasonable accommodations in the absence of an undue hardship. So, allowing employers to force people with disabilities or perceived impairments to pay for follow-up test subverts the goal of the ADA to ensure that those with disabilities have equality of opportunity and would force them to face costly barriers to employment.
If employers are not required to pay for the additional medical tests they require of people with disabilities, they very well might use that medical testing as a way to screen out applicant with disabilities. Putting the burden to pay on employers, helps to ensure that employer do not abuse their power to require testing at the post-offer, pre-employment stage.
While the EEOC did not show that BNSF acted with the discriminatory motive, it didn’t have to since it was clear that action was taken because of an impairment or perception of an impairment.
BNSF did not contest the issue of whether Holt was qualified under the ADA but even so, they decided to impose an MRI on him because of its perception that he had an underlying back problem.
With respect to the nationwide injunction, the court noted that there are customarily four factors a court considers when granting a nationwide injunction and they are: 1) whether plaintiff has suffered an irreparable injury; 2) whether remedies available at law are inadequate to compensate for that inquiry; 3) the balance of hardships; and 4) the public interest. While the District Court did not engage in this analysis, the Ninth Circuit holds that the factors were met in this particular case. Even so, the Ninth Circuit said that the injunction had to be vacated and remanded because the District Court failed to make adequate factual findings to support the scope of the injunction.

III

BNSF Takeaways

The ADA has a complicated scheme when it comes to medical exams and disability related inquiries, and we discussed that in this blog entry.
It is a bit mind-boggling to me that an employer would try to impose the costs of such exams on the applicant because doing so undoubtedly screens out people with disabilities and directly contravenes the whole idea behind the ADA in the first place.
There is a big debate going on right now about the utility of nationwide injunctions, and the four factor test provides a useful guideposts for trying to figure that out.
Interesting that the Ninth Circuit says that the final prong of a prima facie case is showing that the applicant was discriminated against, “because of his disability.” As we discussed in this blog entry, that is not what the ADA as amended requires.
Also interesting, is that the court with respect to regarded as says the ADA as amended provides for an exception from regarded as coverage if the impairment is transitory OR minor. However, 42 U.S.C. §12102(3)(B) requires that the impairment to be excluded must be transitory AND minor. Also, the court says that the plaintiff has the burden to show that the impairment is not transitory or minor.
While it is true that physical or mental impairment is not defined in the ADA itself, 29 C.F.R. §1630.2(h) does state what a physical or mental impairment is. It is a rather sparse definition, but in fleshing that out, it is helpful to remember how the ADA as amended defines major life activities.
Don’t forget about the screen out provisions of the ADA.

In the Matter of Paul Williams, Township of Lakewood Facts

The Township of Lakewood received an anonymous letter purportedly from a very concerned employee at Lakewood Public Works saying that Williams had mental issues and was a time bomb waiting to explode. For over eight months, the Township took no action concerning the letter. Then, the Township advised Williams that he would be sent for psychological fitness for duty examination and that if he did not attend such an examination he would face disciplinary action. Williams believe the examinations were not job-related and consistent with business necessity as required by the ADA at 42 U.S.C. §12112(d)(4)(A), and so he did not attend the evaluations. Accordingly, the Township sought to remove him from employment. It first went through the ALJ, which found in favor of Williams. They then appealed it to the Commission, which found in favor of the Township. Williams then appealed it into the court system.

In the Matter of Paul Williams, Township of Lakewood Court’s Reasoning

The ADA at 42 U.S.C. §12112(d)(4)(A) prohibits employers from requiring a medical exam or making inquiries on employee at the whether such employee is a person with a disability unless such examination or inquiry is shown to be job-related and consistent with business necessity. Citing to a case (Kroll), discussed in this blog entry, the court notes that there is very little discussion of this particular section in the ADA’s legislative history.
EEOC regulations make clear that an employer cannot require an employee to undergo medical test that do not serve a legitimate business purpose.
In an EEOC enforcement guidance, the EEOC says that a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when the employer has a reasonable belief, based upon objective evidence, that either: 1) an employee’s ability to perform essential job functions is impaired by a medical condition; or 2) an employee poses a direct threat due to a medical condition.
With respect to direct threat, which we have discussed many times in our blog, such as here, pursuant to 29 C.F.R. 1630.2(r), the term refers to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.
An employer has to reasonably believe either through direct observation or through reliable information obtained from credible sources that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat before it can require a medical examination of a current employee.
EEOC enforcement guidelines says that an employer cannot act on information learned from another person to impose a medical exam unless the information learned is reliable and gives rise to a reasonable belief that the employee’s ability to perform essential job functions is impaired by a medical condition or poses a direct threat due to a medical condition. The guidance goes on to list five factors for an employer to consider for determining whether the information an employer receives is reliable and those factors are: 1) the relationship of the person providing the information; 2) the seriousness of the medical condition at issue; 3) the possible motivation of the person providing the information; 4) how the person learned of the information (whether directly from the employee whose medical condition is in question or from someone else); and 5) other evidence that the employer has bearing on the reliability of the information provided.
The employer’s belief requires an assessment of the employee and his or her job and cannot be based on general assumptions.
The Township did not meet its burden to demonstrate that requiring a physical exam was job-related and consistent with business necessity because the evidence was not there: 1) Williams work performance was satisfactory; 2) while Williams was confrontational at times, he didn’t behave differently than any other employee; 3) the Township failed to prove that Williams was a direct threat to either himself, others, or property; 4) prior employees of the Township were not required to undergo psychological evaluations, and the Township did not present any documentary evidence concerning any other disciplinary actions involving Williams; 5) the Township failed to take action for eight months; 6) the Township could have but did not solicit information from the Department of Public Works Director and any other supervisors concerning Williams job performance; and 7) the Township could have contacted the three union stewards specifically named in the letter for information about the alleged outbursts that Williams had but did not. Instead, they failed to investigate for over eight months, and then sought to rely on the letter as the sole basis for requiring the medical exam.

In the Matter of Paul William Township of Lakewood Takeaways

I am generally not a big fan of enforcement guidances. I think lawyers use them as a crutch. I am much happier sticking to statutory provisions and final implementing regulations that have gone through the rulemaking process. That said, as we discussed in this blog entry, enforcement guidances do prove useful at times. I believe using the enforcement guidance’s five factor test to figure out whether information you receive that might justify a medical exam makes a lot of sense and is good preventive law. I suppose whether it makes sense is a personal call, but hard to argue that the enforcement guidance five factor test is great preventive law.
The case cited to in the opinion, Kroll, we discussed here.
In many ways, the decision to require a medical exam of the current employee blends into whether a direct threat exists.
You can never go wrong with individual analysis.
If you receive information suggesting that a medical examination may be in order, in addition to the five factor test, be sure to look into it promptly and not wait eight months.
This court says transitory and minor is an affirmative defense, which is different from what the Ninth Circuit says in BNSF, our first case. So, when it comes to transitory and minor, check your jurisdiction on who has the burden of proof. Also, on the plaintiff side, be sure to monitor the defense so that a court is not convinced that it is transitory or minor rather than transitory and minor as stated in the ADA itself.

42 U.S.C. §12102

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