medical exams

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

July 13, 2019 by William Goren Leave a Comment

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.

Medical Exams, Direct Threat, and Qualified and How All Three Concepts Work Together

February 5, 2019 by William Goren 3 Comments

I hope everyone had fun with the Super Bowl yesterday. It was the lowest scoring Super Bowl by five points in the history of all Super Bowl’s. It beat the record set by the Miami Dolphins when they beat the Washington Redskins in 1972 to go undefeated. What is particularly mind-boggling is that the rules have changed in a big way since 1972 to emphasize passing and scoring, and yet the game was the lowest scoring in history. The 72 Dolphins featured a very balanced attack (Warfield, Griese, Csonka, Kiick), and an incredible defense (Buaniconti etc), but the rules were so different. It is incredible that a game played in 2019 would somehow beat that record.

Turning to the blog entry of the day, we discuss a published decision from the Fourth Circuit had been making its rounds on the Internet. The case is EEOC v. McLeod Health Inc. decided on January 31, 2019. It bears talking about because it is pretty progressive in much of its thinking. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and a big takeaways section. Of course, the reader is free to focus on any or all of the categories.

Facts

For 28 years, plaintiff worked for McLeod Health Inc., which operates various hospitals and other healthcare facilities in South Carolina. Her job was the editor of McLeod’s internal employee newsletter. Her responsibilities included interviewing other employees and writing about company events. Accordingly, plaintiff typically traveled among McLeod’s various campuses, which are now five in number and spread across an area of 100 miles. Plaintiff has a physical disability known as posttaxial hypoplasia of the lower extremity. As a result, she does not have certain bones in her legs, feet, and right hand. Her lower legs are shorter than normal and her right arm is shorter than her left arm. Therefore, she has always struggled with mobility. Falling has always been part of her life and there’s no way around it. While she has had surgery to increase her stability, her limited use of her feet and legs still cause her to fall sometimes and stumble sometimes. Also, that condition causes her to get tired more easily and make it difficult for her to sit or stand in one position for too long.

Despite her limited mobility, plaintiff satisfactorily performed her duties as editor of McLeod’s employee newsletter for almost 30 years. While records indicated that plaintiff fell at work multiple times before the events involved in this case, McLeod’s own words said that her condition did not impact her ability to perform the essential functions of her job during her employment.

Over the course of several months preceding the event giving rise to this case, plaintiff’s manager repeatedly expressed concerns about plaintiff’s performance to McLeod’s Human Resources Department. She told HR that plaintiff had been missing deadlines, arriving late to work, and in her view, displaying a less than enthusiastic attitude about McLeod’s internal messaging. In her discussion with HR, plaintiff’s manager raised the possibility that plaintiff performance issues were due to problems with her health, such as plaintiff looked like walking was more difficult for her than usual and that plaintiff appeared flushed and winded after moving very short distances. Plaintiff’s supervisor also reported that plaintiff seemed to have trouble staying alert during meetings. At HR’s suggestion, plaintiff’s manager attempted to address plaintiff’s performance issues by meeting with plaintiff, clarifying her expectations, and reducing plaintiff’s workload. However, she did not raise any concerns about plaintiff’s health with the plaintiff herself.

In 2012, plaintiff fell 3 times in a four months span. Plaintiff’s manager reported plaintiff’s third fall to HR shortly after it happened. HR advised her to bring her concern to the company’s occupational health department and plaintiff’s manager did so right away. Based upon that report, plaintiff’s job description, and its own records of plaintiff’s medical issues, occupational health determine that the plaintiff needed to undergo a fitness for duty medical exam. Even so, occupational health was not particularly concerned with plaintiff’s performance on the job. It ordered the fitness for duty exam to ensure that the plaintiff could safely get to different locations in order to do her stories.

At occupational health, a nurse practitioner gave plaintiff a fitness for duty exam. During that exam, plaintiff told the nurse practitioner about her medical history and the circumstances of her recent falls. Plaintiff also told the nurse practitioner that she had difficulty stepping on the curbs and that she was supposed to, but generally did not, use a cane network. The nurse practitioner listen to plaintiff’s heart and lungs and also examined her joints. Her conclusion was that plaintiff needed further testing by undergoing a functional capacity exam. A functional capacity exam is an exam where position evaluate whether an employee is physically capable of performing the duties of her job. The nurse practitioner based that conclusion on: 1) plaintiff’s self-reported history of falls; 2) her decision not to use her recommended assistive device; and 3) for general lack of mobility and range of motion in her knees, ankles, and feet.

McLeod placed the plaintiff on paid administrative leave pending the results of her functional capacity exam. Functional capacity exam was performed by an occupational therapist who did not have access to plaintiff in order to clarify her job duties prior to the exam. While McLeod told the occupational therapist that her job required her to carry no more than 20 pounds at a time, the occupational therapist determined that the plaintiff would likely need to be able to carry 38 pounds at a time to do her job and tested her accordingly. His exam also indicated, inaccurately so, that he believed that the plaintiff had only recently begun to fall at work and in her home.

The occupational therapist concluded that plaintiff had a high fall risk and 75% of all work-related task and recommended that plaintiff among other things: 1) be restricted to traveling no more than 10 miles from her main office; 2) using assistive device, such as a motorized scooter; and 3) be provided a parking space in an area without a curb. Plaintiff in turn submitted a request for: 1) a parking spot in an area without a curb; 2) help with selecting an appropriate assistive device; 3) a new desk chair with adjustable height arms; and 4) limitations on walking and standing as much as possible. Plaintiff did not believe she needed any accommodation to continue doing her job, but thought that she was required to submit the accommodation form.

Though plaintiff was told several times that she could submit report from her own doctors if she disagreed with the occupational therapist conclusions, she was also told at least once that she could not have her old job back. She also did not submit reports from her own doctor to refute the occupational therapist conclusions. For that matter, she did not apply for other jobs available within McLeod even though the company assigned her a recruiter to help find her suitable positions. The plaintiff did find some open positions for which she was marginally qualified, but they paid significantly less than what she had made in her old job. After plaintiff had been on medical leave for six months, McLeod terminated her employment. Plaintiff then filed a complaint with the EEOC, and the EEOC brought suit against McLeod for violations of the ADA by: 1) requiring the plaintiff to undergo a medical exam despite a lack of objective evidence that such an exam with necessary; and 2) discharging plaintiff on the basis of her disability.

Court’s Reasoning

The court in a footnote called befuddling the occupational therapist’s conclusion that plaintiff had a high fall risk for 75% of all work-related tasks. In particular, when the occupational therapist was asked how the 75% figure was formulated, he answered, “she had fallen at home, at restaurants, and at work. One, two, three. 75%.”
Medical exams can only be done on an employee when it is job-related and consistent with business necessity per 42 U.S.C. §12112(d)(4)(A).
The EEOC’s enforcement guidelines state that for an employer ordered medical exam to be job-related and consistent with business necessity, the employer must reasonably believe based upon objective evidence either: 1) the employee’s ability to perform the essential job function is impaired by a medical condition; or 2) the employee can perform all the essential functions of the job, but because of his or her medical condition, doing so would pose a direct threat to his or her safety or the safety of others.
The threshold question is whether navigating to and within McLeod’s campuses was an essential function of plaintiff’s job.
In a footnote, the court said that the correct way to apply the EEOC’s enforcement guidance in a case like this, is to begin by asking whether the relevant job function qualifies as essential. If the answer to that question is yes, then you have to ask whether the employee is medically capable of performing the function without posing a direct threat to herself or others, i.e. whether the employee can perform the function safely.
There is evidence in the record supporting McLeod’s position. For example, plaintiff’s manager testified that plaintiff’s job required her to navigate to and from company events and conduct in person interviews. Additionally, plaintiff agreed in deposition testimony that her job required the ability to safely navigate marketing department functions, including but not limited to navigating outside parking lots, grassy areas, and walking in a wide variety of areas in order to obtain photographs and interviews.
The record also contained evidence supporting the EEOC’s position. In particular: 1) although plaintiff preferred to navigate McLeod’s various campuses to conduct in-person interviews, take photographs, and attend company events, doing so was not actually essential to her job; 2) McLeod’s own written description of plaintiff’s position contained no mention of navigating to and from company events or conducting in-person interviews; 3) plaintiff testified that although she collected better content by attending company events and conducting in-person interviews, she didn’t think that either was necessarily a requirement for her job; 4) plaintiff was able to conduct interviews and collect other forms of content over the phone.
To get past summary judgment, all the EEOC has to offer is more than a mere scintilla of evidence in support of its position that navigating to and within McLeod’s campuses was not an essential function of plaintiff’s job and that burden was met.
A reasonable jury could conclude that when McLeod required plaintiff to take a medical exam, the company lacked a reasonable belief-based on objective evidence-that plaintiff’s medical condition left her unable to navigate within the company’s campuses without posing a direct threat to her own safety.
An employer’s reasonable belief that an employee cannot perform the essential function or cannot do so without posing a direct threat has to be based on objective evidence obtained or reasonably available to the employer prior to making a disability related inquiry or requiring a medical examination. At that point in time, McLeod knew that plaintiff had been able to perform the essential function of her job for 28 years even though she suffered from limited mobility and sometimes fell at work. It also knew that she had fallen once at work and twice outside of work with the fall at work causing virtually no injury and the falls outside of work not causing any severe injury. The other item McLeod had had reported to it was that plaintiff had recently missed deadlines, was showing up late, and struggled to handle her workload. Also, plaintiff’s manager thought that plaintiff looked unusually winded after walking short distances and appear groggy during meetings. Accordingly, a reasonable jury looking at the evidence in the light most favorable to the plaintiff could conclude that in the context of plaintiff’s employment history, it was not reasonable for McLeod to believe that she had become a direct threat to herself on the job simply because she had fallen multiple times recently and her manager thought she looked groggy and out of breath. This is especially the case given that only one of plaintiff’s recent falls occurred at work resulting in virtually no injury.
With respect to a wrongful discharge claim under the ADA, a plaintiff has to prove: 1) that she has a disability; 2) that she is a qualified individual for the employment in question; and 3) that her employer discharged her because of her disability.
A qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of the employment position the individual holds or desires. Since it is not certain that navigating to and within McLeod’s campuses was essential to plaintiff’s job, it can’t be said that there aren’t questions of fact regarding the wrongful termination.

III

Takeaways:

It really seems to depend upon the court as to how they view summary judgment motions. Summary judgment motions happen all the time in federal practice with respect to disability discrimination, with their success or not seeming to depend upon the jurisdiction. Some courts seem to think summary judgment motions act as a screen out for all but the strongest cases for plaintiffs. While other courts seem to focus much more on whether critical facts that can send the case the plaintiff’s way are in dispute. Of course, there is a range between the two extremes.
There seems to have been a real lack of communication between HR, plaintiff’s manager, and the plaintiff. Reading between the lines, it seems that the plaintiff’s manager was making all kinds of assumptions about the plaintiff based upon what she was seeing. Happens all the time with people with disabilities. Instead of doing that, you want to focus on whether the essential functions of the job are being done with or without reasonable accommodations well. It seems a lot of problems could have been prevented here if the plaintiff’s manager, HR, and the plaintiff had communicated with each other.
Interesting, the plaintiff not contesting McLeod’s actions was not held against her. Of course, that is the law, but even so, interesting.
If you are going to do a medical exam on a current employee, make sure you first are doing so because it is job-related and consistent with business necessity. We discussed both of those concepts here.
I have argued for years that direct threat and qualified are entirely two different concepts. It is heartening to finally be proven right. That is, the question of whether a person can do the essential functions of the job with or without reasonable accommodations (i.e. qualified), as this court points out, is an entirely different question than whether a person poses a direct threat to him or herself or to others.
Essential functions of the job are based upon what is happening on the ground and not what is in job descriptions.
Keep job descriptions current and accurate.
This case is unusual with the statement saying that all the EEOC has to offer to survive summary judgment is offer more than a scintilla of evidence. That is not a high standard. Many jurisdictions in effect require far more than that.
The decision to require a medical exam must be based upon objective evidence that the person cannot perform the essential functions of her job with or without reasonable accommodations or cannot do it safely. The reference point is the time the medical exam is requested.
For a discussion of direct threat, see this blog entry. You can use the search engine in my blog to find others as we have discussed direct threat many times.
Just because a person is suffering injuries outside of work does not necessarily make them a direct threat at work. In this case, it seems that the plaintiff because of her history knew how to protect herself when she fell.
Never forget about the interactive process.
Remember that qualified means can the person do the job’s essential function with or without reasonable accommodations. Also, if direct threat is involved, the question is can reasonable accommodations be made so that direct threat does not come up.
If it ain’t broke, don’t fix it. I can’t tell you how many times I have seen in reviewing these kinds of cases where things are working perfectly fine, and the employer decides to fix it when it isn’t necessary to fix it.
Make sure qualified people performed the fitness for duty exam and that they have all relevant information. That information also needs to be current. Finally, the exam itself needs to be narrowly focused. On the plaintiff side, plaintiff’s lawyer should strongly consider attending the fitness for duty exam. Just by sitting there and taking notes without saying a word can ensure that the exam stays narrowly focused and that the plaintiff is careful about what is said.
It is not up to the medical professional to change the job’s essential functions.
Remember, if you take federal funds and have more than 15 employees, you need an ADA/504 grievance procedure. If you do not take federal funds, are a public entity (see comments to this entry), and have 50 or more employees, you need an ADA grievance procedure. Regardless, grievance procedures are always a good idea.
The question isn’t whether the employee was discharged because of a disability, but whether the employee was discharged on the basis of disability. That distinction matters as we discussed in this blog entry.

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.

medical exams

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