Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12117, makes it unlawful for an employer to "require a medical examination" or to "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." Id. § 12112(d)(4)(A). According to the Equal Employment Opportunity Commission ("EEOC"), this means that an employer should not make disability-related inquiries or require a medical examination of an employee unless the employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), 5 (EEOC No. 915.002 July 27, 2000), reprinted at https://www.eeoc.gov/policy/docs/guidance-inquiries.html. A recent decision from the Fourth Circuit Court of Appeals reversing a grant of summary judgment in favor of the employer illustrates the difficulties employers face in navigating the ADA rules regarding required medical examinations of employees.
The EEOC brought EEOC v. McLeod Health, Inc., No. 17-2335, 2019 WL 385654 (4th Cir. Jan. 31, 2019), on behalf of Cecilia Whitten ("Whitten"), who had worked for McLeod—a corporation that operates hospitals and healthcare facilities over five campuses within a 100-mile radius in South Carolina—as the editor of the internal employee newsletter. Whitten was born with postaxial hypoplasia of the lower extremity, a disability that affected her mobility. Because of her disability, she fell frequently, including at work, and tired easily. Although Whitten had performed her duties satisfactorily for 28 years with her disability, at some point, her supervisor expressed concerns to Human Relations ("HR")—but not to Whitten—that health issues were causing Whitten to miss deadlines, arrive late to work, and display a less-than-enthusiastic attitude about McLeod's internal messaging. The supervisor also was of the opinion that Whitten appeared sluggish and was out-of-breath after moving short distances. After Whitten fell three times in four months—one time on the job—with no fall resulting in serious injury, the supervisor again contacted HR, which directed the supervisor to take her concerns to Occupational Health ("OH"). After reviewing the supervisor's complaint, Whitten's job description, and its own records of Whitten's medical issues, OH determined that Whitten should undergo a fitness-for-duty exam to ensure that Whitten could move to different job locations safely. Whitten was confused about the need for the evaluation, but cooperated since she believed she had no choice. Following that evaluation, OH concluded that Whitten should undergo a functional-capacity exam ("FCE"), a medical evaluation as to whether an employee can perform the duties of her job. McLeod put Whitten on paid administrative leave pending the results of the FCE.
An occupational therapist ("OT") conducted the FCE without clarifying Whitten's job duties with her. Moreover, the OT erroneously assumed that Whitten would need to carry up to 38 pounds to perform her job even though McLeod advised the OT that Whitten was required to carry only up to 20 pounds, and that Whitten had only recently begun to fall. The OT recommended that Whitten be restricted to traveling no more than 10 miles from her main office, that she use an assistive devise, such as a motorized scooter, and that she be provided with a parking space without a curb. Because Whitten thought she was required to submit a request for reasonable accommodations following the FCE, she asked McLeod for a parking spot without a curb, help selecting an assistive device, a desk chair with adjustable-height arms, and limitations on walking and standing as much as possible. McLeod responded by putting Whitten on unpaid medical leave on the grounds that she could not perform her job because she could not travel to all of the company's campuses to collect stories for the employee newsletter. McLeod told Whitten that she could not have her old job back, but stated that she could submit reports from her own doctors disagreeing with the FCE report and that she could apply for other jobs within the company. She did not submit reports from her own doctors, but did look for jobs within the company. Whitten determined that open positions for which she was marginally qualified paid considerably less than what she earned as editor. After six months on medical leave, McLeod fired Whitten.
Whitten filed a complaint with the EEOC, which in turn filed suit in federal court alleging that McLeod had violated the ADA by (1) requiring Whitten to undergo an unnecessary medical exam, and (2) discharging her on account of her disability. The Fourth Circuit found that summary judgment was inappropriate for several reasons. On the illegal medical exam claim, there were genuine issues of material fact as to whether traveling from campus to campus was an essential function of Whitten's job, the threshold inquiry of the claim. The supervisor testified that Whitten's job required Whitten to travel to and from company events in order to conduct in-person interviews, and Whitten agreed that she was required to safely navigate company’s marketing functions in order to obtain photographs and interviews. However, the record also contained evidence that although the company preferred that Whitten travel to events to conduct in-person interviews, that function was not included in her job description, and Whitten was able to collect newsletter content over the phone.
Even if traveling to various campuses were an essential function of the job, there was evidence in the record from which a reasonable jury could conclude that McLeod did not have a reasonable belief that Whitten's medical condition left her unable to navigate the company's campuses without posing a direct threat to her own safety. Given her ability to perform the functions of her job for 28 years in spite of limited mobility and occasional on-the-job falls, a jury could have found that it was unreasonable for McLeod to believe that Whitten had become a direct threat to her safety on the job simply because she had fallen multiple times recently and her supervisor thought she looked groggy and out-of-breath. The Fourth Circuit found it unnecessary to address whether the FCE was inconsistent with business necessity because it was insufficiently tailored to Whitten's actual job requirements. The crux of the issue on the wrongful discharge claim was whether Whitten was a qualified individual with a disability. The district court had based its finding on this element of the claim on its erroneous finding on the illegal medical exam claim that Whitten could not perform an essential function of her job because she could not navigate the company's campuses safely. Because there were genuine issues of material fact as to whether navigating the campuses was an essential function of the job, it was an error to find that Whitten was not a qualified individual with a disability.
While the Fourth Circuit has left it to the district court to determine the legality of the medical exam and Whitten's termination from employment, the appellate decision points out the dangers of requiring an employee to undergo a medical examination based on the subjective observations of a nonmedical supervisor that a disabled employee is not performing her job adequately. It also underlines the importance of communicating with the employee to include her fully in the process.