Pursuant to the policy, they alleged, officers who return from extended leave, regardless of the nature of the leave, must undergo medical and psychological testing before returning to service.
Not only did a police officer and detective, who were placed on leave after suffering work-related injuries, establish standing to sue the Boston Police Department under the ADA challenging its policy requiring all officers who return from an extended leave to undergo medical and psychological exams before returning to work, their unions also established association standing. In addition, a federal court in Massachusetts stated in denying the department’s motion to dismiss, while the First Circuit has not specifically addressed the issue, other circuits have found that plaintiffs bringing a claim under 42 U.S.C. § 12112(d)(4), which prohibits in part “inquiries of an employee as to whether such employee is an individual with a disability,” are not required to establish that they have a disability. The plaintiffs’ state-law claims, including for genetic information discrimination, also advanced (LaCroix v. Boston Police Department, April 15, 2020, Casper, D.).
After injuring his back and hip while on duty in March 2016, the patrol officer was placed on leave until he was cleared to return to work more than two years later. Before he could return, however, he was required to meet with both the department’s occupational physician, who examined his back and hip and cleared him to return with restrictions, and its psychiatrist, who also approved his return to service. The detective, who had likewise been placed on leave after she broke her foot, also had to be evaluated by both a department nurse and the psychiatrist before she could return.
Policy. Both the officer and detective, and their unions, as well as a union representing all uniformed sergeants, lieutenants, and captains, sued the department alleging that its policy requiring that, prior to returning to full duty, officers must meet with the occupational physician if they have been absent for three or more months and both the physician and the psychiatrist if they have been absent for six or more months, violated the ADA and state law.
Standing. Moving to dismiss, the BPD first argued that the individual plaintiffs did not have standing to sue because they failed to allege they suffered any injury and they passed the exams and were permitted to return to work. Although the department cited numerous cases in which applicants were subjected to various medical inquiries during the hiring process and were eventually denied employment, the plaintiffs here brought their claims under a separate ADA provision related to prohibited examinations and inquiries of current employees, the court noted, finding the pre-employment cases were not analogous as the plaintiffs in those cases failed to prove they had suffered an injury due to the alleged illegal inquiries and there was no imminent possibility of further harm.
Current employees. “In contrast,” said the court here, “courts analyzing claims brought by current employees have held that employees who had not suffered adverse employment actions nevertheless had standing to challenge policies that they alleged violated the ADA’s prohibition on medical examinations and inquiries of current employees.” And here, the officer and detective both alleged they lost earning potential while they waited to undergo psychological examinations before they could return to work. In addition, the court pointed out, because they were still subject to the policy there was an ongoing possibility they could again be subjected to the post-leave exams.
Associational standing. Having determined that the officer and detective have standing to sue, the court found “it follows that the unions have satisfied the requirement that their members have standing to sue.” Further, because they represent the interests of department employees, the BPD’s employment policies are directly related to the purposes for which they were established, said the court, noting that the claim and requested relief do not require participation of the associations’ members.
Disability requirement. As to the department’s assertion that the officer and detective failed to allege they were qualified individuals with disabilities, the court pointed out that they brought their claim pursuant to 42 U.S.C. § 12112(d)(4), which prohibits, in part, “inquiries of an employee as to whether such employee is an individual with a disability.” While it appeared that the First Circuit has not specifically addressed this issue, “other Circuits have concluded that a plaintiff bringing a case pursuant to 42 U.S.C. § 12112(d)(4) is not required to establish that they have a disability.” the court noted. Moreover, these courts have observed that the language in 42 U.S.C. § 12112(d)(2-4) is broader than that in the general provision under Section 12112(a), referring to all job applicants and employees rather than just qualified individuals with disabilities. Further, said the court, it agreed with their reasoning that “it would be inconsistent with the purpose of the medical examination and inquiry prohibitions to require that an employee demonstrate that he or she has a disability before challenging an employer’s inquiry into whether the individual has a disability.”
Business necessity. Also rejected was the department’s contention that the officer and detective failed to allege the exams were not job-related or consistent with business necessity as they did not bear the burden of establishing that. And even if they did, they alleged that the department requires physical and psychological exams of all individuals who have been on leave for over six months “regardless of the reason for the officer’s absence,” and because both were on leave as the result of physical injuries, the psychological exams that they were required to undergo prior to returning to work “did not relate to their recovery or their ability to perform job-relation functions.” Thus, they sufficiently alleged their ADA claims.
State-law claims. Turning to the plaintiffs’ state-law claims, the court noted that Chapter 151B is the “Massachusetts analogue” to the ADA and the state high court has indicated that federal case law construing the ADA should be followed in interpreting Chapter 151B. Thus, for the same reasons related to the ADA claim, the court denied the department’s motion to dismiss the state-law claims.
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