EEOC Challenges Medical Exam That Led to Travel Restriction

 

By Rosemarie Lally, J.D. April 9, 2019
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​The Equal Employment Opportunity Commission (EEOC) may proceed with Americans with Disabilities Act (ADA) claims on behalf of an employee who was required to undergo a medical examination. An employer-ordered exam is lawful only if it is job-related; in this case, an exam that led to a travel restriction might have been unnecessary because traveling may not have been an essential job function, the 4th U.S. Circuit Court of Appeals ruled.

The worker, who was the editor of a health care management company's employee newsletter, was born without certain bones in her extremities, causing limited mobility. This causes her to tire easily, and she sometimes falls.

But she satisfactorily performed her editorial duties for nearly three decades, traveling to five different corporate campuses within a 100-mile radius to interview employees, take photographs and attend events.

The employee's manager complained to the human resources department that the employee was missing deadlines and arriving late to work. She suggested the performance issues might be related to the employee's health, saying that she appeared winded after walking short distances.

When the employee fell three times in a four-month span, her manager reported the falls to HR and the occupational health department. The occupational health department ordered her to undergo a fitness-for-duty medical exam to ensure that she could safely get to various locations to carry out her work.

At the recommendation of the provider who examined the employee, a therapist administered a functional-capacity exam. The therapist who administered the second test mistakenly believed that the employee had only recently begun to fall. Concluding that she had a "high fall risk" in 75 percent of all work-related tasks, he recommended restricting her work travel to a radius of 10 miles from her office.

The employee was not allowed to return to work because the recommendation would prevent her from traveling to various campuses to collect stories and take photos. She was placed on unpaid medical leave and fired six months later. She then filed a complaint with the EEOC.

The EEOC sued, claiming the employer violated the ADA by requiring the employee to undergo a work-related medical exam, despite a lack of evidence of its necessity, and discharging her based on her disability. The district court granted summary judgment to the employer on both counts; the EEOC appealed.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The appellate court noted that for an employer-ordered medical exam to be job-related and consistent with business necessity, the employer must reasonably believe, based on objective evidence, that either the employee's ability to perform an essential function is impaired by a medical condition or that the employee can perform all essential job functions, but in doing so, her medical condition poses a direct threat to her own safety or the safety of others.

The question in this case was whether traveling to different campuses was an essential job function. Although the employee preferred to conduct in-person interviews and attend company events, her job description doesn't mention this function. The EEOC's position was that traveling to various campuses was not essential, and the commission produced evidence that she was able to conduct interviews and collect content over the phone. For this reason, the question should be decided by a jury, the court said, finding that the employer was not entitled to summary judgment.

Further, the court held that a jury could conclude that when the employer required the medical exam, it lacked a reasonable belief based on objective evidence that the employee's disability made her unable to travel between campuses without endangering herself. Prior to the medical exam, the employer knew the employee had been able to perform the essential job functions, including traveling, for 28 years, even though she had limited mobility and sometimes fell. A jury could conclude that it was not reasonable to believe the employee had become a direct threat to herself merely because she had fallen recently and her manager thought she sometimes looked winded, the court said.

Regarding whether the employer violated the ADA by discharging the employee on the basis of her disability, the court noted that the district court's determination was based on its belief that driving to various campuses was an essential job function and that the medical exam indicated that, even with reasonable accommodations, she could not perform that function without posing a direct threat to herself. However, because the appellate court found it uncertain that this travel was essential to her job or that the medical exam was lawful, it concluded that the employer was not entitled to summary judgment on the wrongful-discharge claim.

Equal Employment Opportunity Commission v. McLeod Health Inc., 4th Cir., No. 17-2335 (Jan. 31, 2019), motion for rehearing and rehearing en banc denied (April 5, 2019).

Professional Pointer: Employers should be careful to determine an employee's essential job functions—and whether the employee can perform them—before ordering a fitness-for-duty medical exam. Often essential job functions can be performed in alternate ways that do not impair effectiveness.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

[Visit SHRM's resource page on the Americans with Disabilities Act.]

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