job relatedness

Job Related, Business Necessity, Direct Threat at the CEO level

January 24, 2018 by William Goren Leave a Comment

When it comes to blog entries, sometimes, I have a pipeline of cases to discuss. Sometimes, I have to search for a case to discuss. Sometimes, a news item comes up bearing discussing. As of now, cases in my pipeline include: standing under title III of the ADA; a tour de force on why Internet only places are places of public accommodations; and a case from the 11^th circuit exploring the issues of what is an actual disability and when a person is regarded as having a disability. I’ve had all of those cases in the pipeline for a bit, but I’m having trouble figuring out which one to blog on first.

Also, news keeps coming up. For example, recently Delta changed its service dogs and emotional support dog policy, and I am still digging into that (we might even have our first guest blogger for that one). That Delta change in policy has been a real hot topic of discussion on the animal law section of the Texas Bar Association listserv. In particular, the concern there is whether Delta change in policy goes beyond the requirements of the Air Carrier Access Act. In the news today, on the front page of the Wall Street Journal, there is an article entitled, “CSX to make CEO’s health its business.” Since I have been on a job-related and business necessity tear of late, I thought this article would win out for today’s blog entry. The article is divided into two categories: the WSJ article and thoughts. The blog entry is so short that you will probably want to read the whole thing. Nevertheless, it is possible to focus on either category or both.

WSJ Article

The article reports that CSX Corporation Board will adopt a policy requiring the railroad’s chief executive to submit to an annual physical exam that will be reviewed by the board. That annual physical exam will be conducted by a board selected physician. The rule comes about due to the issue CSX had with the last CEO. That CEO had a history of health issues and required the use of a portable oxygen tank to treat an unspecified medical condition. He declined the board’s request to review his medical records or submit to a physical as part of being named CEO. His hiring included an $84 million payment to cover compensation he left behind when he quit his job at another railroad to leave CSX. Hiring that CEO probably added $10 billion to the company’s market value. After taking medical leave of absence, that CEO died.

This isn’t the first time a company has had to deal with CEO health issues. For example, Apple never disclosed the specific reason for two extended medical leaves by co-founder Steve Jobs who died in 2011 after battling pancreatic cancer. United Continental holdings CEO was hospitalized and the company did not initially disclose that he had suffered a heart attack. He took a medical leave, had a transplant, and returned to work the following year. In 2015, the Goldman Sachs Group CEO informed his board of his lymphoma diagnosis shortly after receiving the news from his doctor. He continued to work through treatment and returned to work full-time the following year.

The article does note that requiring executives to share their physicals with the board could violate employment laws and at least required waving a right to privacy. I agree on the right to privacy needing to be waived, state laws and HIPPA for example. The article also notes that securities laws don’t explicitly require companies to disclose executive health problems, though companies must share material information that might affect investor decisions to buy or sell stock.

My Thoughts

The article doesn’t say if the physical is part of the CEO contract. Rather, it just says that it is a policy adopted by the board. I would be a lot more comfortable if the physical was part of the CEO contract for the reasons discussed in this blog entry. That particular blog entry discusses how in a collective bargaining context it isn’t always necessary to have some kind of cause before doing a post-employment medical exam as a result of the bargained for terms. It certainly helps if the job has a safety angle to it, which the CEO job does not.
CSX has a current CEO, but I could foresee problems if they required a physical exam prior to making a conditional job offer. See this blog entry.
With regards to a postemployment medical exam, an employer has the right to insist on one if it is job-related and consistent with business necessity (not sure why that wasn’t done with respect to its last CEO). Is that the case here? With respect to business necessity, is the exam vital to the business? The article points out that the health of a CEO can dramatically affect a company’s valuation. So, I have to vote yes. However, the harder question is whether the physical exam is no broader and no more intrusive than necessary.
With respect to job-related, from this blog entry, we learned that the Sixth Circuit has said that job-related involves the employer showing any of the following: 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.
With respect to the CEO of a major corporation, the business necessity piece seem to be fairly obvious. Just what is evaluated in the exam much less so. However, especially if you are in the Sixth Circuit, getting by job relatedness may not be so simple where the CEO is doing his or her job and nobody is aware of any problems. Remember, direct threat, which we discussed here and in numerous other blog entries, is a legal standard and a high one at that. The burden is also on the employer to establish direct threat.
Is it just the CEO that is going to have this requirement? What about other high level employees?
While an employee certainly has the right to waive its privacy, an employer cannot insist on waving the employee’s ADA rights.
If the physical does reveal problems, then the company is going to have to assess whether those problems that come up during the physical exam are job-related, consistent with business necessity, and whether there are any reasonable accommodations that can be put in place.
Bottom line: I would be a lot more comfortable if such a requirement was put in the contract with the CEO itself. I’m not sure a board policy will cut it in light of what we have discussed in this blog over time.

I really do have to move off this job-related and business necessity focus don’t I:-). Next week:-)

Job Relatedness and Business Necessity Revisited

January 5, 2018 by William Goren 1 Comment

Hope everybody had a great holiday season and happy new year to all! Back to the grind:-)

The blog entry for the week explores two different cases dealing with disability related inquiries and medical exams of employees. The cases are from the Seventh Circuit and from the District Court of the District of Columbia. As is usual, the blog entry is divided into categories, and they are: facts of Painter v. Illinois Department of Transportation; court’s reasoning (Painter); facts of Lewis v. Government of the District of Columbia; court’s reasoning in denying summary judgment to the District of Columbia; and takeaways. The reader is free to focus on any or all of the categories.

Facts of Painter v. Illinois Department of Transportation

In September of 2010, Painter began working as an office administrator for the Illinois Department of Transportation’s Division of Traffic Safety. When many employees complained about her behavior, the Illinois Department of Transportation put her on paid administrative leave and required that she submit to a fitness for duty examination, which she did. She was examined by an occupational medicine specialist who concluded that she could perform the essential functions of her job without posing a threat to herself or others, but he also noted that she displayed some hypomania and could be bipolar. So, he recommended reevaluation in 45 days. After 45 days, he put the reevaluation off until she could be seen by a mental health specialist. She did see that specialist and retained her for treatment. Despite the inconclusive reevaluation, the Illinois Department of Transportation allowed her to resume working in response to a grievance her union filed. When she resumed work she again engaged in disruptive behavior. Illinois Department of Transportation then asked to have her fitness for duty reevaluated. At that reevaluation, the evaluator suspected that she might suffer from a personality disorder, but nevertheless cleared her to return to work. When she returned, she again engaged in disruptive behavior, was given a reprimand, and placed on paid administrative leave. She then was evaluated again by a psychiatrist who declared her unfit for duty because of her paranoid thinking and the highly disruptive behavior resulting from her paranoia. The suit followed.

Court’s Reasoning

Citing to the EEOC Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees under the ADA, the court said that a medical examination is job-related and consistent with business necessity if the employer has a reasonable belief based upon objective evidence that a medical condition impairs an employee’s ability to perform essential functions or that the employee poses a threat due to a medical condition.
Preventing employees from endangering their coworkers is a business necessity as a safe workplace is a very foundation of operating a business. To declare otherwise would force an employer to risk a negligence suit to avoid violating the ADA.
Plenty of objective evidence exists to find that the employer properly insisted on the medical examinations.

III

Facts of Lewis v. Government of the District of Columbia

For the better part of a decade, Lewis worked as a human resource advisor management liaison specialist in the District of Columbia’s Office of the Chief Medical Examiner. The duties of that office included autopsies as well as other forensic and medicolegal investigations. Her particular job duties involved classifying positions, writing position descriptions, recruitment activities, timekeeping activities, and interpreting architecture for the reporting requirements of the supervisor to employee matrix. From the time she was hired until October 2012, the office was located in an office building on Massachusetts Ave. in Southeast Washington DC. At some point, the District of Columbia decided to design and construct a consolidated forensic laboratory that would house under one roof a number of city departments including the Office of Chief Medical Examiner, the Department of Forensic Sciences, and several divisions of the Metropolitan Police Department, such as the Firearms and Fingerprint Examination Division, DNA Laboratory, and the Forensic Sciences Service Division. On June 18, 2012, the mayor signed an order directing the director of the human resources department to designate high risk sensitive positions for employees having a duty station at the new location. Those designated employees would be subject to a background check, investigation, mandatory criminal background checks and/or testing for controlled substance use.

On July 18, 2012, the District of Columbia Human Resources General Counsel, and others, held a meeting and distributed letters informing the staff that the office would be moving to the new location. That letter advised that due to the nature of the work performed in the new location, employees occupying positions having a duty station would be subject to mandatory criminal background check and testing for controlled substance use. At that meeting, they also distributed several forms including an individual notification of requirements form for drug and alcohol. The bottom portion of that notice required an acknowledgment of receipt by the employee. The plaintiff voiced her objection to the policy at the meeting and refused to sign the form. The plaintiff questioned why she would need to undergo such testing since her job responsibilities would not change when she moved to the new location. She followed up two days later with a grievance letter saying that she was hired into a nonsensitive position that had not been reclassified nor designated as high risk and so therefore, would not sign the acknowledgment form until the District of Columbia Human Resource Department conducted a reclassification risk assessment.

In October 2012, the District of Columbia Human Resources Director sent the plaintiff two follow up notices requesting that she sign and return the notice and acknowledgment forms but she refused to do so. Those notices further advised that corrective and/or adverse action could result if she did not comply. When the plaintiff attempted to move some of her files into the new location, she was escorted out of the building. When the rest of the staff moved to the new location, she remained alone at the Massachusetts Avenue building in not ideal working conditions. She continued to work there until she received an advance written notice of proposed removal on January 3, 2013 when she was placed on administrative leave. She was eventually terminated on April 9, 2013. Nearly 2 years after her termination, she filed suit alleging violations of the First Amendment, the Fourth Amendment, and the ADA. We are only going to focus on the ADA.

III

Court’s Reasoning in Denying Summary Judgment to the District Of Columbia

Under the ADA, an employer cannot make inquiries of an employee’s disability existence or extent of her disability unless it is shown to be job-related and consistent with business necessity.
Business necessity is a high standard and not to be confused with expediency.
Other Circuits have required employer to show that the asserted business necessity is vital to the business and that the request is no broader nor more intrusive than necessary.
The District of Columbia did not establish beyond dispute that the substance abuse testing was job-related or necessary.
It is the employer that has the burden to show job relatedness or business necessity.
Plaintiff’s complaint clearly alleged that both the alcohol and drug tests violated the ADA.
With respect to ADA prohibited inquiries, it makes little sense to require an employee to demonstrate that he or she has a disability to prevent his employer from inquiring as to whether or not he or she has a disability. Accordingly, many Circuits have held that a plaintiff does not have to prove or allege a disability in order to challenge a medical inquiry under the ADA.

Takeaways

We have previously talked here about the ADA scheme with respect to medical inquiries as well as job-related and business necessity. I still very much like that blog entry for guidance.
Objective evidence that coworkers may be endangered by an employee satisfies the business necessity requirement.
I find the Seventh Circuit decision a bit vague and believe readers are better off referring to the blog entry mentioned in ¶ IV1 for putting meat on the bone so to speak. For example, the issue is not simply one of a “threat,” but rather one of being a direct threat. See this blog entry for example.
The essential functions of the job are related to the job itself and not to where that job is located. You do want to make sure that your job descriptions are current and based upon the actual job. Where the job is located should not as a general rule, drive the essential functions of the specific job.
Job relatedness and business necessity are things that the employer has to show not the plaintiff.
If you are going to do a medical exam, make sure the request for information is not broader nor more intrusive than necessary.
When it comes to ADA prohibited medical inquiries, the person alleging violations of the ADA does not have to prove that they have a disability in order to challenge the inquiry.
If you are having trouble figuring out what is an impermissible medical inquiry or disability-related inquiry, you might find it very helpful to get persons with disabilities (attorneys and/or HR professionals with disabilities), involved in the process as they very well might have heightened sensitivity in this area.
Making an effort to work things out is always a good idea.
Lewis it’s worth a read especially if you are in a state allowing recreational marijuana use. You also may want to look at this blog entry as well, which dealt with medical marijuana use.

Medical inquiries, medical exams, disability related inquiries, job relatedness, and consistent with business necessity

September 2, 2014 by William Goren 1 Comment

I
Overview

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)

Two recent cases from the Sixth Circuit (Bates v. DuraAuto Systems and Kroll v. White Lake Ambulance Authority answer both of these questions.

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.

II
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.

III
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.

IV
Takeaways:

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?