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    Disability Discrimination in Employment—Health-Care Employer Could Condition Employment on Health Screening and Vaccination

    Posted by John M. Stone on Thu, Jan 24, 2019 @ 11:01 AM

    John Stone—Senior Attorney, National Legal Research Group

                The Americans with Disabilities Act ("ADA") prohibits covered employers from discriminating against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). This prohibition against discrimination can apply to certain medical examinations and inquiries.

                However, the ADA does not forbid all medical examinations and inquiries. Their permissibility and scope varies depending on the stage of employment. Employers are generally prohibited from making any disability-related inquiries or requiring medical examinations of applicants before offering employment. Id. § 12112(d)(2)(A). After an offer has been made, however, the ADA permits employers to require a medical examination of a prospective employee, and it permits employers to condition a final offer of employment upon the results of the examination under certain circumstances. Id. § 12112(d)(3). The ADA also generally prohibits employers from requiring current employees to undergo medical examinations or inquiries unless the employer can demonstrate they are “job-related and consistent with business necessity.” Id. § 12112(d)(4)(A).

                A court will find a business necessity if an employer can demonstrate that a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties if the employer can identify legitimate, non-discriminatory reasons to doubt the employee's capacity to perform his or her duties.  The examination or inquiry must be a reasonably effective way to accomplish the employer's goals.  When an employer requires a class of employees to submit to a medical examination, it has the burden to show reasons consistent with business necessity for defining the class in the way that it has.  The employer can meet this burden by showing a reasonable basis for concluding that the class poses a genuine safety risk and that the exam requirement allows the employer to decrease that risk effectively. In this analysis, precision is not required. Defining the class in a reasonable manner is sufficient.

                To bring a medical examination or inquiry claim, a job applicant must establish that the prospective employer's violation of the ADA caused some sort of tangible injury. In Hustvet v. Allina Health System, No. 17-2963, 2018 WL 6425373 (8th Cir. Dec. 7, 2018), the court held that a healthcare employee did suffer a tangible injury as a result of her refusal to finish a health assessment screening. In that case, the plaintiff worked as an independent living skills specialist. The employer, which operated rehabilitation clinics and other rehabilitation facilities, sent an email to her stating that completion of the screening was a condition of her employment. The email further said that the employer was “voluntarily terminating” her position due to her refusal to finish the assessment and get a measles, mumps, and rubella vaccine. However, the employer's decision to require incoming employees with client contact to complete the health assessment screening that tested for immunity to infectious diseases was job-related, consistent with business necessity, and no more intrusive than necessary. Therefore, it did not violate the ADA. The employer had an internal policy, which conformed to a governmental recommendation, of ensuring employee and patient safety by decreasing the risk of communicable disease exposure and transmission. It was factually indisputable in this case that the testing would reveal if the employees posed a risk of spreading those diseases to the employer's clients and would allow a determination regarding whether it was medically safe for incoming employees who may come into contact with clients to wear a respirator in the event of an emerging disease outbreak.

                The plaintiff in Hustvet also was unsuccessful on a separate ADA claim, in which she alleged that the employer violated the ADA by failing to make a reasonable accommodation for her disability. This claim failed because the employee could not meet the threshold requirement that a plaintiff must demonstrate that he or she has a disability within the reach of the ADA. Id. at *6. In this case, the plaintiff's chemical sensitivities or allergies did not substantially or materially limit her ability to perform major life activities. Therefore, the ADA did not require the healthcare employer to grant her request for an accommodation, that is, permitting her to forgo becoming immunized to rubella. The  employee had never been hospitalized  due to an allergic or chemical reaction, she had never seen an allergy specialist, she never had been prescribed an epinephrine automatic injector, she never had sought any significant medical attention when experiencing chemical sensitivity, taken a prescription medication because of a serious reaction, or had to leave work early because of such a reaction.  In any case, the plaintiff's request under the ADA for an accommodation, to forgo becoming immunized to rubella, did not relate in any meaningful way to her purported disability of chemical sensitivities or allergies. Although the live virus in the measles, mumps, and rubella vaccine presented a very small, but possible, risk of having a seizure, the Centers of Disease Control did not consider past seizures to be a contraindication or even a precaution for that vaccine.

    Topics: employment discrimination, ADA, John M Stone, health-care employer, screening and vaccination, state's employer mandates

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