Tuesday, September 16, 2014

Confirm, but don’t fish, when seeking return-to-work medical info under the ADA

The EEOC has sued Minnesota-based Cummins Power Generation for requiring an employee to submit to an alleged overly broad fitness-for-duty examination.

According to the EEOC:

In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information. Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said….

“The EEOC doesn’t challenge Cummins’ request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue,” said John Hendrickson, regional attorney for the EEOC’s Chicago district. “Employees don’t give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far.

The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA provides further explanation:

May an employer make disability-related inquiries or require a medical examination when an employee who has been on leave for a medical condition seeks to return to work?

Yes. If an employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee’s ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

In other words, medical information related to the employees ability to return to work is fair game upon a post-leave fitness-for-duty examination. An employer cannot, however, use the examination as an excuse for a fishing expedition into an employee’s entire medical history.

The 6th Circuit said it best in Sullivan v. River Valley School Dist. (1999), the leading case on this issue:

[A] fitness-for-duty examination … is not an excuse for every wide-ranging assessment of mental or physical debilitation that could conceivably affect the quality of an employee’s job performance. While it is true that the ADA limits an employer’s ability to request unfounded examinations to prevent “the unwanted exposure of the employee’s disability and the stigma it may carry,” an employer may order a well-founded examination…. [H]ealth problems that significantly affect an employee’s performance of essential job functions justify ordering a physical examination “even if the examination might disclose whether the employee is disabled or the extent of any disability.”

So, the moral of this story is to confirm, but don’t fish, when seeking medical information from an employee returning to work following a medical leave of absence.

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