Hope everybody had a great holiday season and happy new year to all! Back to the grind:-)
The blog entry for the week explores two different cases dealing with disability related inquiries and medical exams of employees. The cases are from the Seventh Circuit and from the District Court of the District of Columbia. As is usual, the blog entry is divided into categories, and they are: facts of Painter v. Illinois Department of Transportation; court’s reasoning (Painter); facts of Lewis v. Government of the District of Columbia; court’s reasoning in denying summary judgment to the District of Columbia; and takeaways. The reader is free to focus on any or all of the categories.
Facts of Painter v. Illinois Department of Transportation
In September of 2010, Painter began working as an office administrator for the Illinois Department of Transportation’s Division of Traffic Safety. When many employees complained about her behavior, the Illinois Department of Transportation put her on paid administrative leave and required that she submit to a fitness for duty examination, which she did. She was examined by an occupational medicine specialist who concluded that she could perform the essential functions of her job without posing a threat to herself or others, but he also noted that she displayed some hypomania and could be bipolar. So, he recommended reevaluation in 45 days. After 45 days, he put the reevaluation off until she could be seen by a mental health specialist. She did see that specialist and retained her for treatment. Despite the inconclusive reevaluation, the Illinois Department of Transportation allowed her to resume working in response to a grievance her union filed. When she resumed work she again engaged in disruptive behavior. Illinois Department of Transportation then asked to have her fitness for duty reevaluated. At that reevaluation, the evaluator suspected that she might suffer from a personality disorder, but nevertheless cleared her to return to work. When she returned, she again engaged in disruptive behavior, was given a reprimand, and placed on paid administrative leave. She then was evaluated again by a psychiatrist who declared her unfit for duty because of her paranoid thinking and the highly disruptive behavior resulting from her paranoia. The suit followed.
- Citing to the EEOC Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees under the ADA, the court said that a medical examination is job-related and consistent with business necessity if the employer has a reasonable belief based upon objective evidence that a medical condition impairs an employee’s ability to perform essential functions or that the employee poses a threat due to a medical condition.
- Preventing employees from endangering their coworkers is a business necessity as a safe workplace is a very foundation of operating a business. To declare otherwise would force an employer to risk a negligence suit to avoid violating the ADA.
- Plenty of objective evidence exists to find that the employer properly insisted on the medical examinations.
Facts of Lewis v. Government of the District of Columbia
For the better part of a decade, Lewis worked as a human resource advisor management liaison specialist in the District of Columbia’s Office of the Chief Medical Examiner. The duties of that office included autopsies as well as other forensic and medicolegal investigations. Her particular job duties involved classifying positions, writing position descriptions, recruitment activities, timekeeping activities, and interpreting architecture for the reporting requirements of the supervisor to employee matrix. From the time she was hired until October 2012, the office was located in an office building on Massachusetts Ave. in Southeast Washington DC. At some point, the District of Columbia decided to design and construct a consolidated forensic laboratory that would house under one roof a number of city departments including the Office of Chief Medical Examiner, the Department of Forensic Sciences, and several divisions of the Metropolitan Police Department, such as the Firearms and Fingerprint Examination Division, DNA Laboratory, and the Forensic Sciences Service Division. On June 18, 2012, the mayor signed an order directing the director of the human resources department to designate high risk sensitive positions for employees having a duty station at the new location. Those designated employees would be subject to a background check, investigation, mandatory criminal background checks and/or testing for controlled substance use.
On July 18, 2012, the District of Columbia Human Resources General Counsel, and others, held a meeting and distributed letters informing the staff that the office would be moving to the new location. That letter advised that due to the nature of the work performed in the new location, employees occupying positions having a duty station would be subject to mandatory criminal background check and testing for controlled substance use. At that meeting, they also distributed several forms including an individual notification of requirements form for drug and alcohol. The bottom portion of that notice required an acknowledgment of receipt by the employee. The plaintiff voiced her objection to the policy at the meeting and refused to sign the form. The plaintiff questioned why she would need to undergo such testing since her job responsibilities would not change when she moved to the new location. She followed up two days later with a grievance letter saying that she was hired into a nonsensitive position that had not been reclassified nor designated as high risk and so therefore, would not sign the acknowledgment form until the District of Columbia Human Resource Department conducted a reclassification risk assessment.
In October 2012, the District of Columbia Human Resources Director sent the plaintiff two follow up notices requesting that she sign and return the notice and acknowledgment forms but she refused to do so. Those notices further advised that corrective and/or adverse action could result if she did not comply. When the plaintiff attempted to move some of her files into the new location, she was escorted out of the building. When the rest of the staff moved to the new location, she remained alone at the Massachusetts Avenue building in not ideal working conditions. She continued to work there until she received an advance written notice of proposed removal on January 3, 2013 when she was placed on administrative leave. She was eventually terminated on April 9, 2013. Nearly 2 years after her termination, she filed suit alleging violations of the First Amendment, the Fourth Amendment, and the ADA. We are only going to focus on the ADA.
Court’s Reasoning in Denying Summary Judgment to the District Of Columbia
- Under the ADA, an employer cannot make inquiries of an employee’s disability existence or extent of her disability unless it is shown to be job-related and consistent with business necessity.
- Business necessity is a high standard and not to be confused with expediency.
- Other Circuits have required employer to show that the asserted business necessity is vital to the business and that the request is no broader nor more intrusive than necessary.
- The District of Columbia did not establish beyond dispute that the substance abuse testing was job-related or necessary.
- It is the employer that has the burden to show job relatedness or business necessity.
- Plaintiff’s complaint clearly alleged that both the alcohol and drug tests violated the ADA.
- With respect to ADA prohibited inquiries, it makes little sense to require an employee to demonstrate that he or she has a disability to prevent his employer from inquiring as to whether or not he or she has a disability. Accordingly, many Circuits have held that a plaintiff does not have to prove or allege a disability in order to challenge a medical inquiry under the ADA.
- We have previously talked here about the ADA scheme with respect to medical inquiries as well as job-related and business necessity. I still very much like that blog entry for guidance.
- Objective evidence that coworkers may be endangered by an employee satisfies the business necessity requirement.
- I find the Seventh Circuit decision a bit vague and believe readers are better off referring to the blog entry mentioned in ¶ IV1 for putting meat on the bone so to speak. For example, the issue is not simply one of a “threat,” but rather one of being a direct threat. See this blog entry for example.
- The essential functions of the job are related to the job itself and not to where that job is located. You do want to make sure that your job descriptions are current and based upon the actual job. Where the job is located should not as a general rule, drive the essential functions of the specific job.
- Job relatedness and business necessity are things that the employer has to show not the plaintiff.
- If you are going to do a medical exam, make sure the request for information is not broader nor more intrusive than necessary.
- When it comes to ADA prohibited medical inquiries, the person alleging violations of the ADA does not have to prove that they have a disability in order to challenge the inquiry.
- If you are having trouble figuring out what is an impermissible medical inquiry or disability-related inquiry, you might find it very helpful to get persons with disabilities (attorneys and/or HR professionals with disabilities), involved in the process as they very well might have heightened sensitivity in this area.
- Making an effort to work things out is always a good idea.
- Lewis it’s worth a read especially if you are in a state allowing recreational marijuana use. You also may want to look at this blog entry as well, which dealt with medical marijuana use.