In a recent case, EEOC v. Dillard’s Incorporated (United States District Court of the Southern District of California, Docket number 08cv1780-IEG (PCL)), the court held that an employer’s policy stating that an employee’s health related absence would not be excused unless the employee furnished a note from his or her doctor stating the condition being treated, violated the Americans with Disabilities Act prohibition on disability related inquiries of employees. The Americans with Disabilities Act prohibits medical inquiries of employees unless they are job-related and consistent with business necessity, though the employer can make inquiries into the ability of the employee to perform job-related functions.

There are three questions that arise. First, what is a disability related inquiry? The court relying on another case, discussed below, that cited to EEOC guidelines, held that a disability related inquiry is a question that is likely to elicit information about a disability, such as asking employees about whether they ever have had or do have a disability, the kinds of prescription medications they take, and the results of any genetic test they had, etc. Clearly, a policy requiring a doctor to state the condition being treated is something that is quite likely to elicit information about a disability.

Therefore, the only question that remained for the court to consider was whether Dillard’s policy was job-related and consistent with business necessity. On that, the decision was a bit more muddled. From reading this particular decision, it is hard to determine how the court defined job-related and consistent with business necessity. The court did note that Dillard’s did not furnish any evidence that they needed to know the nature of the employee’s medical condition because of excessive absences so as to, for example, protect the health and safety of its other employees. Dillard’s also did not make any attempt to explain why it was necessary for the doctor’s note to state the medical condition that the employee was being treated for. Dillard’s also did not explain why they thought it was necessary to identify the underlying medical condition. Finally, the court noted that Dillard’s rescinded the policy of requiring doctor’s notes in July of 2007. Therefore, the court had a hard time believing how this policy could be job-related and a matter of business necessity since they continued to operate without the policy.

Particularly if you get a person with a disability involved in the process of determining what might be a disability related inquiry (an inquiry likely to elicit information about disability), the disability related inquiries piece can be easily managed, but the more difficult question is when can the employer defend a disability related inquiry as being job-related and consistent with business necessity. Dillard’s doesn’t offer much guidance on that.

However, this decision relied on another decision from the second circuit in 2003, Conroy v.. New York Department of Correctional Services (Docket # 02-7415, second Cir. 2003), in which the Second Circuit interpreted a virtually identical sick leave policy. That court also held that the sick leave policy at issue in that case, extremely similar to the one in Dillard’s, was a prohibited disability related inquiry. However, more importantly for employers, they did give some guidance as to what is job-related and consistent with business necessity. Several things that the Conroy court said are instructive. First, they said that employer must show more than that the inquiries are convenient or beneficial to its business. Rather, the employer must first show that the business necessity is vital to the business. Second, vital to the business can include such things as ensuring that the workplace is safe and secure or cutting down on excessive absences. Third, the disability related inquiry must be no broader nor more intrusive than necessary. Finally, the disability related inquiry or examination must be a reasonably effective method of achieving the employer’s goals. The Conroy court noted that business necessity will be found by the courts where it can be shown that the inquiry or medical examination was necessary to determine whether the employee could perform job-related duties where the employer identifies legitimate nondiscriminatory reason to doubt the employee’s ability to perform his or her duties; or whether employees absence or request for an absence is due to legitimate medical reasons where the employer has reason to suspect abuse of the attendance policy. The Conroy court noted that there might be other business necessity reasons as well and that these were not exclusive.

So what is an employer to do? First, the employer should review their sick leave policies in order to determine whether the policy is set up in a way that it is likely to elicit information about a disability. Getting a person with a disability involved in that assessment could be very helpful to that process due to their heightened sensitivity about what might reveal a disability. If the assessment reveals that the process is likely to elicit information about a person’s disability, the employer is running a considerable risk of losing Americans with Disabilities Act lawsuit and particularly so since as the Conroy court noted, a person does not have to have a disability to challenge a sick leave policy that runs afoul of the prohibition on disability related inquiries. Second, the employer should consider adopting a system so as to target disability related inquiries to situations where the employer has a reasonable concern about whether the employee can perform the essential functions of the job or the employer has a legitimate concern about whether the attendance policy is being abused. Miry or examination must be a reasonably effective method of achieving the employer’s goals. The Conroy court noted that business necessity will be found by the courts where it can be shown that the inquiry or medical examination was necessary to determine whether the employee could perform job-related duties where the employer identifies legitimate nondiscriminatory reason to doubt the employee’s ability to perform his or her duties; or whether employees absence or request for an absence is due to legitimate medical reasons where the employer has reason to suspect abuse of the attendance policy. The Conroy court noted that there might be other business necessity reasons as well and that these were not exclusive.

So what is an employer to do? First, the employer should review their sick leave policies in order to determine whether the policy is set up in a way that it is likely to elicit information about a disability. Getting a person with a disability involved in that assessment could be very helpful to that process due to their heightened sensitivity about what might reveal a disability. If the assessment reveals that the process is likely to elicit information about a person’s disability, the employer is running a considerable risk of losing Americans with Disabilities Act lawsuit and particularly so since as the Conroy court noted, a person does not have to have a disability to challenge a sick leave policy that runs afoul of the prohibition on disability related inquiries. Second, the employer should consider adopting a system so as to target disability related inquiries to situations where the employer has a reasonable concern about whether the employee can perform the essential functions of the job or the employer has a legitimate concern about whether the attendance policy is being abused. In short, a preventive law approach, would demand that job-related focus on the essential functions of the job and that business necessity focus on such vital interests to the business as the ones discussed here.