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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
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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.
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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. |
Personnel
Policy Service, Inc.
