The ADA has a whole scheme that deals with medical inquiries/exams/ disability related inquiries. Basically, the way it works is this:
1. Preemployment medical inquiries/ exams are prohibited. However, nothing wrong with asking whether a person can do what would be an essential function of the job. That said, if you are going to make a preemployment medical inquiry pertaining to an essential function of the job, you better be sure that your essential function of the job is airtight. Also, you need to be sure that you are not screening out persons with disabilities through your testing per 42 U.S.C. 12112(b)(6).
2. After a conditional job offer, just about anything is permissible. However, two caveats to that. First, don’t forget about the Genetic Information Nondiscrimination Act. Second, if the information from the medical exam subsequent to a conditional job offer leads the employer to revoke the offer, that revocation must be based upon information that is job-related and consistent with business necessity and the performance of the job cannot be accomplished with reasonable accommodations.
3. With respect to post employment medical inquiries/exams they can only be done when they are job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A)
Therefore, we need to know several things: what is a medical exam? (II of this blog entry); What is a disability related inquiry? (II 3 of this blog entry); What is job-related? (III of this blog entry); and what is consistent with business necessity? (III of this blog entry)
As is my usual practice, I have divided the blog entry into categories. They are: overview; Bates v. DüraAuto Systems; Kroll v. White Lake Ambulance Authority; and takeaways. The reader is free to focus on any or all of the categories.
Bates v. DuraAuto Systems
Turning to the first question as to what is a medical exam, Bates does a great job of discussing the area. they noted that the EEOC in their enforcement guidance pertaining to disability related inquiries and medical examinations of employees under the ADA defines a prohibited medical exam as any tests or procedures seeking information about an individual’s physical and mental impairment or physical or psychological health, and they identify several factors for making that determination including: whether the test is administered by a health care professional; whether the test is interpreted by a health care professional; whether the test is designed to reveal an impairment or physical or mental health; whether the test is invasive; whether the test measures an employee’s performance of the task or measures his or her physiological response to performing the task; whether the test is normally given in a medical setting; and whether medical equipment is used. In many cases, some combination of factors will be relevant in figuring out whether a test or procedure is a medical examination, but it is also possible that one factor may be enough. A nonexclusive list of medical examinations include: vision test, blood pressure and cholesterol screening, range of motion test, and diagnostic procedures such as x-rays, CAT scans, and MRIs. The guidance even identifies two qualifying urine tests (discovering alcohol use and detecting diseases that are genetic markers), as also being medical exams.
So is this a medical exam:
An employer orders a plant wide drug screening of a plant’s more than 400 employees. It instructs a third party to test for 12 substances (amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, meta-amphetamines, opiates, oxycodone, phencyclidine, and propoxyphene). The third-party conducts the urinalysis testing in private at the facility’s technology center and reported to company representatives the result of the tests. Following the results of that test, the employer sent home those employees who tested positive. Where that test was positive, the third-party followed a certain procedure. First, it sent samples out for confirmatory testing to reveal which of the 12 substances triggered the positive result and the amount of that substance in the employee’s system. Second, a person then reviewed the chain of custody and interpreted the test results. In reviewing the results, that person questioned employees and sought medical explanations, sometimes requesting prescription information or documentation from the employee’s physician. If it was determined that the employee had a valid reason for the positive result, including use of prescription medication, the person changed the final test results to negative. That would then be forwarded along to the employer. However, regardless of the reason for the positive result, the employer opted to prohibit any employee from using machine restricted drugs. Further, the employer instructed positive testing employees to bring the medications into the third-party for documentation. The third-party would then report same to the employer and the employer would promptly inform the employee that they would terminate them if they continued to use those medications.
Exactly the facts in : Bates v. DuraAuto Systems.
1. The Sixth Circuit said that these particular facts raised a question of fact as to whether a preemployment medical exam/inquiries were occurring. Very importantly, it bears noting that the screen out provisions were not applicable because none of the plaintiffs were persons with disabilities. For a person to claim violation of the screen out provisions, that person must have a disability, which is not the case for the preemployment medical exam/inquiry provisions.
2. A question of fact existed because:
A. the employer refrained from asking plaintiffs about their medical conditions;
B. The plaintiffs offered no evidence showing how the third parties urinalysis of the posttest reporting of machine restricted medication revealed information to the employer about their medical conditions;
C. No one suggested that the consumption of prescription medication containing the chemicals that the test sought constituted protected medical information or even an impairment under the EEOC definition of medical examinations;
D. An employer would struggle to figure out medical conditions from the prescription drugs discovered through this testing regimen, and clearly the employer had designed the whole program in a way to avoid obtaining information about employees medical conditions and to avoid discriminating against all employees taking prescription drugs.
E. Inconsistencies between the employer’s written and actual drug testing policies, which existed, and disparate treatment of individual employees could show an impermissible motive;
F. It is possible that the plaintiffs could present evidence showing that the disclosure of machine restricted medication typically revealed confidential health information so that a jury would determine that the test targets information about an employee’s physical and mental health regardless of the employer’s intent.
3. But that isn’t the end of the matter because the ADA also prohibits disability related inquiries. A disability related inquiry is any inquiry likely to elicit information about a disability. The court said that a question of fact existed here as well because the system was designed in such a way so that a jury could reasonably conclude either way with respect to whether the ADA’s prohibition on disability related inquiries was violated.
A. Happy Trails to Employer?
So defendant wins? Pyrrhic victory and here’s why. First, since the court found that a question of fact existed with respect to whether a medical exam or a disability related inquiry occurred, that means the case has to go to trial, which will be very expensive with a very uncertain result. Second, for reasons we will explore in our next case, the Sixth Circuit affirmed the jury verdict finding that assuming a medical exam or a disability related inquiry occurred, such exams or inquiries were not job-related nor were they consistent with business necessity. Further, the court also said that certain facts supported the jury’s award of punitive damages, but that the jury needed to have meaningful opportunity to consider the employer’s defense that they tried to craft and carry out its policy in compliance with the law. Accordingly, yes the employer did win so to speak, but if they take this matter to trial and lose with respect to the medical inquiry or medical exam, they are without a defense and potentially facing punitive damages.
Kroll v. White Lake Ambulance Authority
The Sixth Circuit in Kroll v. White Lake Ambulance Authority, the prior decision of the Sixth Circuit in this case saying that a medical exam occurred is something I discuss in my book, discusses what it means for a medical exam/inquiry to be job-related and consistent with business necessity. Basically, what happened in this case, is that the plaintiff had an affair with a coworker and that affair went bad. There were then allegations about erratic behavior and without any information about poor job performance and without consulting a psychologist or other mental health professional, the employer decided to force the plaintiff into counseling. When she refused because she could not afford to pay for it, she was no longer scheduled for any additional shifts. As mentioned above, in the first case, the Sixth Circuit found that forcing someone into a medical examination, is a medical examination under the ADA. The question here was whether the medical examination was job-related and consistent with business necessity. With respect to that, the following bears noting:
1. With respect to job-related and consistent with business necessity, the burden of proof is on the employer.
2. In particular, job-related involves the employer showing that the employee requested an accommodation; the employee’s ability to perform the essential functions of the job was impaired; or the employee posed a direct threat to himself or others.
3. With respect to business necessity, an employer is not going to be able to make a bare assertion that a medical examination was merely convenient or expedient. Instead, an employer that decides to require medical examination of an employee has to have a reasonable belief based on objective evidence that the employee’s behavior threatens a vital function of the business.
4. Whether a medical examination [in this case mental examination], is job-related and consistent with business necessity is governed by an objective standard (the reasonable prudent person).
5. The employer also argued that direct threat existed, but the court was having none of it because the assessment of whether an employee poses a direct threat has to be individualized to the employee’s abilities and job functions and based upon a reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence. In this case, the facts were such that there was no evidence in the record that the employer made any kind of medical judgment at all let alone one based upon a reasonable medical judgment. Further, evidence existed that the employer made the decision based on moral convictions rather than on medical concerns, which the court found very troubling.
1. Both of these cases give a great deal of clarity as to what is a medical exam/disability related inquiry as well as what is job-related and consistent with business necessity.
2. With respect to medical exams/disability related inquiries, it is my opinion that an employer can kill two birds with one stone, and particularly so, if the employer is a governmental contractor. If the employer is a governmental contractor, they are required to have an affirmative action program in place designed to get 7% of their workforce to be persons with disabilities, though we will see how long those regulations stay in place for. It is my experience, that persons with disabilities are uniquely situated with respect to determining, or helping to assess, whether a medical exam or disability related inquiry has occurred. Therefore, if you have persons with disabilities on your payroll, whether it be as an attorney, or as a staff person, consider drafting them to help figure out whether a medical exam or disability related inquiry has occurred. You may get a conservative result, but that would not necessarily be a bad thing. Of course, by no means am I suggesting that all persons with disabilities be pigeonholed into this area as that would be wrong. Even so, it may be something that could work to the mutual advantage of both the employee with a disability and the employer.
3. If an employer is going to defend on the grounds that something is job-related and consistent with business necessity, they’re going to have to meet a fairly high standard and further, that standard is an objective one. The same can be said for the direct threat defense.
4. If you are in a union environment and jobs are involved that are highly dangerous, in addition to this blog entry, you also want to check out this other blog entry of mine as well.
5. If you are considering adopting the Bates drug testing regimen, you might want to consider this from the Sixth Circuit opinion:
“Dura’s drug testing protocol pushes the boundaries of the EEOC’s medical examination and disability inquiry definitions. It certainly goes further than what the ADA’s drug testing exemption specifically permits…” While it is true, as the Sixth Circuit noted, that the regimen does not clearly fit the EEOC’s definitions and examples of prohibited conduct, do you really want to take that chance?