The Americans With Disabilities Act ("ADA") prohibits employment discrimination against persons with disabilities. The ADA also contains a prohibition against certain medical examinations. The ADA's medical examination and inquiries provision states: "A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A).
Recent developments in the Sixth Circuit Court of Appeals have expanded employees' rights under the medical examination provision. This article discusses some the recent cases interpreting section 12112(d) of the act.
An Employee Need not Meet the ADA Disability Definition to be Protected by Section 12112(d).
Generally speaking, the ADA protects individuals who meet the act's definition of being "disabled." Individuals may be considered "disabled within the meaning of the Act" and therefore qualify for ADA protection in three circumstances: if the individual (1) has "a physical or mental impairment that substantially limits one or more major life activities of such individual;" (2) has "a record of such an impairment;" or (3) is "being regarded as having such an impairment (as described in paragraph (3)." 42 U.S.C. 12102(1).
But an employee need not be disabled in order to benefit from the medical examination provision. Subsection (d)(4) protects all employees from medical inquiries, regardless of whether they have a qualifying disability. See, Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 813 n. 6 (6th Cir.2012). This broad protection reflects Congress's effort to "curtail all questioning that would serve to identify and exclude persons with disabilities from consideration for employment." See, Bates v. Dura Auto. Sys., Inc., 767 F.3d 566 (6th Cir. 2014). In the Kroll case, the employee denied being disabled and would have had difficulty proving eligibility for protection under the ADA, other than through the "regarded as" being impaired prong of the ADA's definition of disabled. Proceeding under the medical examination provision may also be superior to a straight ADA disability claim because a discriminatory motive is not a required element of proof in a medical examination claim.
What is a Medical Examination?
Employers may request an employee to undergo a fitness for duty examination so long as the examination meets the "job related and business necessity" tests. A pilot who suffered an eye injury, for example, may be requested to see an optometrist or an ophthalmologist to confirm his ability to fly a plane safely. But what about a request that an employee receive counseling? In Kroll v. White Lake Ambulance Auth., 691 F.3d 809 (6th Cir.2012), the court found that mandated psychological counseling may qualify as a "medical examination." The court relied, in part, on EEOC guidance on the subject. See, Enforcement Guidance: Preemployment Disability–Related Questions and Medical Examinations, at 14 (1995), http://www.eeoc.gov/policy/docs/preemp.html. In Kroll, the Sixth Circuit found that there were genuine issues of material fact over whether the counseling was covered because "the exact substance of the ‘counseling' Kroll was instructed to attend remains unclear and somewhat in dispute by the parties." Id,. p 818. In Bates v. Dura Auto. Sys., Inc., 767 F.3d 566 (6th Cir. 2014), the court found that there were genuine issues of material fact over whether a drug test was a "medical examination" as defined by the ADA.
The "Job Related and Consistent with Business Necessity" Standard.
The Kroll case was reversed and remanded by the Sixth Circuit on the "medical examination" issue and was dismissed a second time by the district court following remand. The second dismissal was on the ground that the mandated counseling was justified under the "job related and business necessity standard." The Sixth Circuit reversed the district court a second time following remand, again finding genuine issues of material facts on this question. Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 624 (6th Cir. 2014).
An employer may request a medical examination when "there is significant evidence that could cause a reasonable person to inquire as to whether the employee is still capable of performing her job." Kroll, 763 F.3d at 624 (6th Cir. 2014). The Sixth Circuit found that the evidence was mixed, based on Ms. Kroll's general good work performance, and the decision-maker's lack of information about some of the emotional outbursts alleged by the employer. The court found: "Kroll's isolated moments of unprofessional conduct might reasonably have prompted Binns to begin internal disciplinary procedures or to provide Kroll with additional training, but they could not support the conclusion that Kroll was experiencing an emotional or psychological problem that interfered with her ability to perform her job functions." Id.
The Sixth Circuit's employee-favorable decisions interpreting the medical examination provisions may be seen as following a trend of cases denying employer summary judgment motions following the enactment of the Americans with Disabilities Amendment Act in 2008. Those amendments expressed Congress's intent to expand courts' interpretation of the disability definitions in the ADA.