When “Just to Be Sure” Can Violate the ADA…

written by Rebecca S. Webber and Jordan Payne Hay

With the Central Maine Human Resources Association program on June 20 on the Americans with Disabilities Act (“ADA”) in mind, we want to get everyone warmed up and primed on the topic. If you are not already a member of CMHRA, come as our guest – your first visit to a monthly program is free. Register at:http://cmhra.org/

So, let’s say you have an employee who needed to be out of work for a period of time due to an illness or injury. No big deal. The employee is asking to return to work. Now what? Say the employee works as a laborer who might need to lift and move certain heavy materials. In that case, an employer may require an employee to undergo a physical agility or fitness test in order to ensure that the employee can safely perform the functions of the job they are returning to. An employer can do one of two things:
  1. Have the employee undergo a fitness for duty test using the company’s own provided doctor; or
  2. Ask an employee to have a physician certify whether s/he can safely perform the test.
If the employee seeks certification from their own doctor, an employer is entitled to get a note from the doctor simply stating that the employee can safely perform the test(s) or, an explanation of the reason(s) why the employee cannot perform the test(s).What an employer cannot do, “just to be sure,” is have the employee get a note from their doctor and also go to the company’s doctor or third party provider after the employee has gotten the note from their treating doctor.
Also, whether the employee goes to see his or her own doctor or the company doctor, an employer cannot obtain the employee’s complete medical records “just to be sure.”   An employer cannot obtain information about any conditions that do not affect the employee’s ability to perform the physical agility or physical fitness test safely. It may seem like a doctor in this situation is pretty limited in what they can look at, but you cannot request the employee’s full medical file and cannot perform tests or procedures outside the scope of what is needed to show the employee can safely perform their job.

Now, let’s say you have an employee who is returning to work and who you know has an on-going medical condition that you feel might affect their ability to do their job. Can you ask them about their disability? What about requiring them to get a medical exam just to be sure? The Equal Employment Opportunity Commission (“EEOC”) (the federal version of the Maine Human Rights Commission) says, “yes” to both . . . but tread lightly. If you as the employer have a reasonable belief that an employee’spresent 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, you may make disability-related inquiries or require the employee to submit to a medical examination.
However, remember, you can’t require a medical examination that goes beyond the scope of the employee’s job duties . . . just to be sure. Any inquiries or examination must be limited to what is needed to make an assessment of the employee’s ability to work. Keeping the focus on whether the employee can do the job is critical. Usually, you’ll only need to make inquiries or require examinations related to the specific medical condition for which the employee took leave. The other stuff is off limits . . . and asking about it could violate the ADA (federal law) or the Maine Human Rights Act (Maine law). Here’s the key: you as 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. You also can’t “play doctor” and make decisions based on worries or assumptions you personally have regarding the particular condition.
What if your employee has been out on workers comp and you’re afraid they might re-injure themselves? You cannot keep them out of work just to be sure. Here is how the EEOC puts it:
14. May an employer refuse to return to work an employee with a disability-related occupational injury simply because it assumes, correctly or incorrectly, that s/he poses some increased risk of reinjury and increased workers’ compensation costs?

No, unless an employer can show that employment of the person in the position poses a “direct threat.” Where an employer refuses to return an employee to work because it assumes, correctly or incorrectly, that his/her disability-related occupational injury creates merely some increased risk of further occupational injury and increased workers’ compensation costs, it discriminates on the basis of disability. The employer may not refuse to return to work an employee who is able to perform the essential functions of the job, with or without a reasonable accommodation, unless it can show that returning the person to the position poses a “direct threat.”

The EEOC has provided two helpful examples (available on their website):

-Example A: A data entry clerk broke her leg while skiing and was out of work for four weeks, after which time she returned to work on crutches. In this case, the employer does not have a reasonable belief, based on objective evidence, either that the clerk’s ability to perform her essential job functions will be impaired by a medical condition or that she will pose a direct threat due to a medical condition. The employer, therefore, may not make any disability-related inquiries or require a medical examination but generally may ask the clerk how she is doing and express concern about her injury.
*The key here is that the broken leg has nothing to do with the employee’s ability to perform her job duties as a data entry clerk.
-Example B: As the result of problems he was having with his medication, an employee with a known psychiatric disability threatened several of his co-workers and was disciplined. Shortly thereafter, he was hospitalized for six weeks for treatment related to the condition. Two days after his release, the employee returns to work with a note from his doctor indicating only that he is “cleared to return to work.” Because the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat due to a medical condition, it may ask the employee for additional documentation regarding his medication(s) or treatment or request that he submit to a medical examination.
*The key here is that the employer has objective evidence to ask follow-up questions specifically related to the employee’s ability to perform his job.
The ADA can be a really tricky topic, it is true. Luckily, the Central Maine Human Resources Association’s June meeting (June 20th) is ALL about the ADA. You can also submit questions in advance to rwebber@sta-law.com to make sure that your questions are addressed. Finally, is there a topic or issue you would like to see addressed? Let us know!

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals , companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.