medical exams

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.

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:-)

medical exams

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