Court Sheds Light on Medical Exams under the ADA
Employee Protests Request for Physical Exam
Business Necessity Explained
Strategy Suggestions
When is a medical examination job-related and consistent with business
necessity? A court decision provides some clues.
Every student of the Americans with Disabilities Act (ADA) knows that the law
limits medical examinations and inquiries of current employees to those that
are "job-related and consistent with business necessity." But what does this
standard mean? A recent decision by the Third Circuit Court of Appeals, Tice v.
Centre Area Transportation Authority, No. 00-1753, (4/23/01), tackles the
standard’s definitions and provides guidance on when medical exams will meet
the ADA’s requirements. In addition, the court determined that the employer did
not regard an employee as disabled simply because it requested that he undergo
an independent medical exam before returning to work from a medical leave of
absence.
Employee Protests Request for
Physical Exam
In this case the union employee, a bus driver, took a medical leave in October
1994 for back injuries sustained off the job. The employer’s leave policy
permitted union employees to take medical leave for a period of up to two
years. If employees failed to return at the end of the two-year period, the
company considered them to have voluntarily resigned. Employees who returned
before exhausting their two-year leave and then took additional leave for the
same condition still were considered to be on the same two-year leave clock,
unless they worked for at least six weeks before requesting further leave.
During his leave, the employee submitted a letter from his doctor that
recommended he undergo back surgery before resuming his duties. The employer
then informed him that before he could return to work, he would need to submit
a return-to-work certificate attesting to his fitness to perform the job. In
April 1996, the employee indicated to his employer that he was planning to
undergo the surgery, but two months later he told the company that he had
canceled it. He submitted a return-to-work certificate signed by the same
doctor who had recommended surgery.
The company asked the doctor to explain what had changed to make the employee’s
return possible without the surgery. The doctor’s explanation was extremely
vague, and the employer then asked the employee to submit to an independent
medical examination (IME) before reinstatement. The employee objected and filed
a grievance with the union. Eventually, he agreed to the independent exam and
returned to work in August 1996.
A month after the employee returned to work, he was involved in a
nonwork-related automobile accident. He submitted a doctor’s note requesting
leave based, in part, on reexacerbation of his back pain. The employer informed
him that he was close to the end of his two-year leave period and that if he
did not return to work within the month, the company would consider him to have
voluntarily resigned. When the employee did not return by the specified date,
the employer notified him that it considered him to have quit.
The employee sued alleging, among other things, that the employer violated the
ADA by requiring him to submit to an improper medical examination (the IME) as
a condition of his return to work. In addition, he claimed the fact that the
employer asked him to submit to the IME showed the employer regarded him as
disabled. The district court ruled in favor of the employer, and the employee
appealed.
Business Necessity Explained
The Third Circuit Court of Appeals began its analysis by noting that the mere
fact of asking for an IME alone was not enough evidence that the employer
regarded the employee as having a disability. According to the court, a request
for an IME only establishes that the employer has doubts about the employee’s
abilities to perform certain job functions. Doubts alone, however, do not
establish that the employer regards the employee as disabled. The employee must
provide further evidence that the employer believed he was disabled because he
was substantially limited in a major life activity. He failed to do so in this
case.
The court then turned its attention to whether the IME was an improper medical
examination under the ADA. The ADA prohibits employers from making examinations
or inquiries about whether an employee is disabled, or about the nature or
severity of a disability, unless they are job-related and consistent with
business necessity. The court acknowledged that the statute did not fully
define what this requirement means. It attempted to explain it by noting that
an acceptable medical examination, at a minimum, must be limited to evaluating
the employee’s ability to perform the particular job at issue. In this case,
the court said the employer was justified in asking for an IME since the
conflicting notes from the doctor raised doubts about the employee’s condition.
Further, because the employee was working in a safety-sensitive position as a
bus driver, the court recognized that clarifying his fitness for work was
crucial and, therefore, consistent with business necessity. In addition, the
scope of the exam was reasonable since it was limited to evaluating the
employee’s back injuries.
The court also addressed the employee’s further contention that because he had
been the only employee asked to submit to an IME before returning to work, the
exam was not consistent with business necessity. The court pointed out that
generally an employer’s normal medical examination practice is relevant as to
its necessity to the employer’s business. However, in this case, the employee
did not provide any evidence that his situation was in fact comparable to other
employees who had been allowed to return to work without submitting to IMEs.
Based on all of these factors, the court upheld the lower court’s decision in
favor of the employer.
Strategy Suggestions
So do your medical examinations meet the ADA’s job-related, consistent with
business necessity standard? They should if:
-- There is a reasonable basis for
the exams. If you don’t have a good reason for requiring the exam,
don’t request one. In this case, the discrepancy between the doctor’s original
letter and the return-to-work certificate created doubt about the employee’s
ability to perform his job safely. But, if the employee had never brought up
the doctor’s recommendation for surgery, the employer’s request would have been
more questionable.
-- The exams are narrowly focused.
This court made clear that if a medical exam does more than address the problem
in question, it would not meet the standard. So, request only specific medical
information about the effect of the particular injury or illness that
necessitated the leave on the employee’s ability to return to work. Don’t
request a general physical or a return-to-work certificate stipulating the
employee is in "good health."
-- The medical examination
requirements are applied consistently. One of the employee’s
arguments to support his claim of discrimination was that no other employee had
ever been asked to submit to an independent medical examination before
returning to work. The employer may have lost this case if there had been
evidence that the employee had been treated differently from similarly situated
workers. Therefore, to support your decisions, be consistent and make sure to
document why examinations are required.
As a side note, if the employee also had been covered by the Family and Medical
Leave Act (FMLA), the outcome of this case may have been different. (The FMLA
was not an issue, probably because the employee’s leave extended well beyond
the 12-week maximum leave allowed by the FMLA.) Like the ADA, the FMLA allows
return-to-work certificates if they are job-related and consistent with
business necessity. However, the certification only has to state that the
employee is able to resume work, and the FMLA does not allow the employer to
require a second certification. Thus, the second independent medical
examination may not have been allowed if the case had involved the FMLA.
This article is not intended as legal advice. Readers are encouraged to seek
appropriate legal or other professional advice. Copyright 2004 Personnel Policy
Service, Inc.