Employment Law Daily Given employee's deteriorating health and performance, medical exams did not violate ADA
Wednesday, April 6, 2016

Given employee's deteriorating health and performance, medical exams did not violate ADA

By Lorene D. Park, J.D. Granting summary judgment against the EEOC’s claims that an employer violated the ADA’s medical examination provisions, a federal district court in South Carolina agreed with a magistrate that the ability to safely navigate the employer’s campuses was essential to an employee’s job and, based on her repeated falls and evidence that her performance and health were declining, the employer’s request for a medical evaluation was job-related and consistent with business necessity. However, the court sent the wrongful discharge claim back to the magistrate for further analysis (EEOC v. McLeod Health, Inc., March 31, 2016, Hendricks, B.). As detailed in a magistrate judge’s report, the employee was born with severe congenital defects of one arm, and both legs. Her deformities, which were noticeable, affected manual dexterity and her ability to stand or walk for long periods. They also caused her to fall regularly. As the editor of the employee newsletter, the employee was responsible for finding stories, interviewing people, taking photographs, and writing stories. She agreed it was better to interview people in person and she regularly traveled among the employer’s campuses and to off-campus events. Deteriorating performance and health. In late 2011, the employee’s supervisor noticed a decline in the employee’s enthusiasm and job performance; including her ability to meet deadlines. The supervisor also noticed the employee was declining physically—she was frequently absent; appeared winded, flushed, unkempt, and clammy; and was visibly unstable. Her coworkers complained that she was nodding off at work and asking them to do her work. The supervisor discussed these issues with the employee, who also expressed concerns. Medical exams. After the employee had several falls, her supervisor consulted with HR and with the occupational health department and it was concluded that a fitness for duty (FFD) exam was warranted. In July 2012, a nurse conducted the FFD, discussing the employee’s condition, mobility, and falls; and examining her cardiovascular, respiratory, and neurological health. The nurse recommended a functional capacity exam (FCE) and the employee was put on leave. The professional who performed the FCE observed the employee’s heart rate and blood pressure, and had her stand on one foot for two minutes, squat, grip, and carry a 38-pound weight. He found she was a “high fall risk, high injury risk, secondary to her congenital defects and severely deconditioned state.” He suggested limiting her to a ten-mile vicinity, modifying her chair, and providing a scooter. He refused to clear her for work unless these were met. Termination. The employer decided she could not perform the essential functions of her job, which required navigating campuses within a 100-mile radius. She was offered medical leave and a recruiter helped her search for open positions, though she found none at her pay grade. The employer also repeatedly suggested she get input from her own doctors. Eventually, she was terminated under a policy that limited a leave of absence to six months. Exams were job-related, consistent with business necessity. The magistrate recommended and the court agreed that summary judgment was warranted against the EEOC’s claim that the medical exams violated the ADA. At issue was whether the exams were job-related and consistent with business necessity. An employer meets that test if it has a reasonable belief based on objective evidence that: (1) an employee’s ability to perform essential functions is impaired by a medical condition; or (2) an employee poses a direct threat due to a medical condition. Here, the court agreed with the magistrate that the ability to “navigate safely” was essential to the employee’s job. Although the written job description did not refer to it, the uncontroverted evidence (including testimony by the employee and her supervisor) indicated it was essential for her to travel on campuses and to outside events to obtain stories, interviews, and photographs. Moreover, the supervisor’s knowledge of the employee’s falls, as well as the decline in her work performance and physical condition, supported a reasonable belief that the employee’s ability to perform essential functions were impaired by her medical condition. The court noted that it was not the supervisor who sent her for a FFD exam; it was an associate VP of occupational health along with others who made that decision based on the objective evidence before them. Exams not overly broad. Also rejected was the EEOC’s argument that, because the employee’s falls were caused by a congenital condition and nothing more, the exams were too broad. To the court, this suggested the employer should have simply accepted her belief on what caused her falls. But employers are not expected to understand ramifications of medical conditions and must be able to seek exams by medical professionals. Given the reasonable concern that the employee might not be able to perform essential functions, the employer could require a medical exam and there was no evidence that testing blood pressure, stability, and cardiac function—which could contribute to falls—went beyond what was allowed. The FCE was also “appropriately narrow” in scope because the test was based on the employee’s description of what she actually did at work. Wrongful discharge claim. As to the wrongful discharge claim, there was conflicting evidence on whether the employee failed to engage in the interactive process in good faith and whether that led to a failure to accommodate, so summary judgment on this basis was not warranted. The magistrate had not yet addressed the employer’s other arguments, so the claim was remanded.

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