The ADA allows a physical exam to be made after a conditional job offer. That is, it is perfectly permissible under the ADA to offer a person a job conditionally subsequent to taking a physical. If the employer denies employment after the physical exam (i.e. takes back the conditional job offer), the employer must do so by showing that the denial was job-related, consistent with business necessity, and no reasonable accommodations existed to allow the person to perform the job.
We have already seen what can happen when an employer relies on a physical exam subsequent to a conditional job offer but ignores essential functions of the job and whether reasonable accommodations are possible. Here is another case along those lines. In the first part of this blog entry, I go into detail on the facts of the case since there are lots of critical facts. After that, I discuss the court’s reasoning. Finally, I talk about the lessons that can be learned from this case. The reader is free to explore any and all of the parts of the entry.
In Lafata v. Dearborn Heights School District No. 7, 2013 WL 6500068 (E.D. Mich. December 11, 2013), the plaintiff submitted an application for the position of Plant engineer with the school district. His application revealed that he was the building supervisor for 10 years. In that position, he was responsible for complete maintenance of the inside and outside of the building, HVAC, minor plumbing and electrical work, roof repairs, maintenance of refrigeration equipment for the ice rink, set up and care of the community pool, closing the pool, set up and resurfacing of the ice rink, operating and repairing the Zamboni, set up and tearing down for ice shows and events, and selling and scheduling of ice time. He regularly used ladders and carried objects weighing more than 40 pounds in the building supervisor position. During his interview for the plant engineer’s position, the duties of the position were described including that the job required physical labor, such as climbing ladders and lifting more than 55 pounds. The plaintiff was asked if he would any have any problem with the physical labor involved, and he answered that he would have no problems. A conditional job offer was made subsequent to passing a physical. The plaintiff went to that exam. During that exam, the examining physician noted that the plaintiff had muscle atrophy in his legs and that he could not walk on his heels or toes. He also asked the plaintiff if he wore leg braces, and the plaintiff responded that he did sometimes but had not worn them that day. He also noticed muscle atrophy in his hands, but that his strength seemed to be adequate. As a result of his examination, the examining physician decided that the plaintiff had a genetic disorder that causes muscle deterioration and gradual loss of strength. He shared that diagnosis with the plaintiff but did not ask him if he had any physical symptoms or limitations. For that matter, he did not ask the plaintiff any questions concerning his current employment duties or employment history because he believed that such information was not relevant in determining whether a prospective employee could physically do the job for which he or she was applying for. After being given a note by the examining physician of his conclusion to take to his family doctor, the plaintiff did go to his family doctor. His family doctor agreed with the examining physician’s diagnosis, however she also believed that his strength was more than adequate for the job and his daily activities and provided that report to the examining physician. The examining physician then requested a job description for the plant engineer position. As a result of reviewing that job description, , which was very general, the examining physician concluded that the plaintiff could only do ground-level work and should be restricted from climbing ladders and from lifting more than 40 pounds. The examining physician’s deposition, which was confirmed by the notes of the school district’s human resources personnel, said that the plaintiff was healthy for now but may deteriorate over time. Further, the evidence revealed that the disqualification (i.e. the taking back of a conditional job offer), was made by the examining physician and the HR department completely devoid of any information as to what the plaintiff was currently doing in his job and without exploring whether any reasonable accommodations would work. Plaintiff then filed a lawsuit alleging violations of the ADA, the genetic information nondiscrimination act and Michigan’s PWDCRA law. The plaintiff subsequently dropped the claim of violation of the genetic information nondiscrimination act.
In granting the motion of the plaintiff for summary judgment (it is rare for a plaintiff to have their motion for summary judgment granted), the court reasoned as follows:
1. The Americans With Disabilities Act Amendments Act amended the ADA so as to describe a variety of major life activities, including musculoskeletal functions, which would seem to cover muscle wasting caused by the plaintiff’s diagnosis.
2. Regardless, of whether the plaintiff had an actual disability, the evidence was such that the school district clearly regarded the plaintiff as having a disability per the ADAAA.
3. The school district lacked sufficient information to assess whether the examining physician’s opinion was reasonable.
4. Neither the examining physician nor the school district engaged in any analysis to determine whether reasonable accommodations would enable the plaintiff to perform the essential functions of the job.
5. The ADA requires an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position.
6. The examining physician’s examination of the plaintiff was neither lengthy nor comprehensive.
7. The school district had a duty to review the examining physician’s report to assure itself that the examination and analysis was thorough and/or reasonable.
8. An employer cannot slavishly adhere to a physician’s opinion without stopping to assess the objective reasonableness of the physician’s conclusions.
9. Employers do not escape their legal obligations under the ADA by contracting out certain hiring and other functions to third parties.
10. No analysis was done whether the restrictions suggested were reasonably based on the plaintiff’s actual physical limitations.
11. The school district had evidence available to it and known to it that it did not consider such as: the plaintiff was performing the very functions at his current position that the examining physician said he could not do; the plaintiff specifically told the interviewer that he would have no problems with the physical requirements of the job after receiving a description of those requirements; and the plaintiff’s family physician said that the plaintiff’s strength was more than adequate for the job and daily activities and that he could work without the restrictions.
12. It was undisputed that the examining physician and the school district did not engage in any analysis to determine whether reasonable accommodations were available that would allow the plaintiff to perform the essential functions of the position despite his disability and the so-called necessary physical restrictions imposed by the examining physician.
13. The school district failed to rebut the plaintiff’s showing that numerous reasonable accommodations existed so that he could perform the essential functions of her job.
14. The direct threat defense does not fly because one of the elements of that defense is that they have to show that the direct threat cannot be eliminated by reasonable accommodations, something which could not be done in this case.
This case gives you a laundry list of what to do with respect to a physical exam subsequent to a conditional job offer and how to deal with that information, including:
1. Have the examining physician do a complete history of the patient, including what the applicant is currently doing while recognizing that such an analysis should be narrowly focused on the job at hand and its essential functions so you don’t run afoul of various things, such as the ADA and the genetic information nondiscrimination act;
3. Are the essential functions of the job precise and is the examining physician aware of those essential job functions;
4. The exam should be comprehensive and narrowly focused;
5. If the examination raises a red flag, are the red flags that are raised such that they would be job-related and consistent with business necessity;
6. Assuming the red flags, has there been an independent evaluation of whether any reasonable accommodations exists so as to allow the applicant to perform the essential functions of the job with or without reasonable accommodations. Has the employer talked to the applicant about what reasonable accommodations might work?;
7. Is the decision-making regarding removing a conditional job offer being based upon the plaintiff’s actual condition rather than the plaintiff’s possible condition in the future;
8. Does the person actually have a disability or is the examining physician regarding him or her as having a disability;
9. Has there been an independent evaluation of whether the physician’s opinion was reasonable in light of what is known;