Is that Medical Exam Really “Necessary”?

October 28, 2015

The Americans with Disabilities Act (ADA) prohibits an employer from compelling employees to undergo a medical exam unless the employer shows the exam is job-related and consistent with business necessity. The U.S. Court of Appeals for the 7th Circuit (whose rulings apply to all Wisconsin employers) recently decided whether an employer’s requirement that an employee undergo a medical exam was consistent with business necessity. A jury concluded that the employer did not establish that the medical evaluation was consistent with business necessity, and the court of appeals agreed, resulting in liability for the employer.

This article provides guidance to assist you in determining whether to require an employee to undergo a medical evaluation because her medical condition appears to be affecting her job performance or constitutes a threat to the employee or other workers.

Recent Case

Margaret Wright was employed as a case worker by the Illinois Department of Children and Family Services (DCFS). The DCFS claimed that Wright improperly communicated with a child, sending the child into a “manicking frenzy.” The department found that Wright had started a “riot” in the unit where the child was housed, resulting in the destruction of furniture and attacks on staff members. The incident generated criticism of Wright’s performance, including her ability to get along with coworkers and supervisors.

The DCFS decided to have Wright undergo a medical assessment to see whether she was fit to perform her job. A physician at the DCFS stated that he “believed that there was enough clinical data to wonder about… Wright’s ability to work with children and that her mental health need[ed] to be assessed.” Relying on the doctor’s opinion, the DCFS ordered Wright to undergo a medical evaluation.

Wright declined to undergo a medical evaluation on several occasions. On one occasion, she went to the doctor’s office but refused to submit to the exam. She then went on vacation and resigned at the end of her vacation, claiming she was constructively discharged. She sued the DCFS for, among other things, compelling her to undergo a medical evaluation in violation of the ADA. A jury found in favor of Wright, and the DCFS appealed.

The court of appeals evaluated whether the medical exam was job-related and consistent with business necessity under the ADA. The court concluded that the medical exam was not consistent with business necessity, noting that the DCFS did not follow its normal procedure when requiring an employee to undergo a medical evaluation. Generally, the DCFS either assigned the employee restricted duties (e.g., desk duties) or placed the employee on administrative leave. However, the department allowed Wright to continue performing her normal duties. The DCFS continued to assign her cases that required her to work with children, including at least one high-profile case. The court concluded that if the DCFS truly believed that Wright was unable to perform her job because of a medical condition or that she posed a direct threat to others, including children, it should not have permitted her to continue to perform her duties. Wright v. Illinois Dept. of Children and Family Services, Nos. 13-1552 and 13-1553 (7th Cir., Aug. 14, 2015).

ADA Requirements

The ADA’s rules on medical exams apply to all employees, not just those with disabilities. The rules on medical exams differ depending on the stage of employment. The ADA and applicable regulations recognize three stages in the employment process in which the appropriateness of disability-related inquiries or medical exams must be assessed: (1) the pre-employment offer, (2) after a conditional employment offer but before starting work, and (3) after employment begins. The rules on medical exams are different for each stage. The Wright case involved the third stage (after employment begins). At that stage, an employer can require a medical evaluation only if it is job-related and consistent with business necessity.

A “medical examination” is a procedure or test that seeks information on an individual’s physical or mental impairments or health. Exams are usually given by a healthcare professional. Medical exams may include vision tests; blood, urine and saliva analyses to detect diseases or genetic markers; nerve conduction tests; range of motion tests that measure muscle strength and motor function; psychological tests designed to identify mental disorders or impairments; breath analysis; blood pressure screening; cholesterol testing; and diagnostic procedures such as X-rays and CAT scans. Medical exams do not include blood or urine tests for current illegal drug use, physical agility or physical fitness tests, or polygraphs. Keep in mind that both Wisconsin and federal law severely restrict the use of polygraphs for employment purposes.

What counts as job-related and consistent with business necessity? The Equal Employment Opportunity Commission (EEOC) and courts have noted that “job-related and consistent with business necessity” means the employer must have a reasonable belief that:

  • An employee is unable to perform the essential functions of her job because of a medical condition; or
  • An employee poses a direct threat because of a medical condition.

The belief must be based on objective evidence. For example, if you notice a serious deterioration in an employee’s performance of essential job functions and she attributes the decline to a medical condition, you may request that she undergo a medical evaluation.

The scope of medical exams must be limited to the job’s duties or the potential threat to the employee or others. You may have an employee who you reasonably believe poses a direct threat examined by your healthcare provider. But again, the exam should be appropriately limited. You may require a medical exam when an employee has been on leave because of a medical condition and wants to return to work. To require an exam, you must have a reasonable belief that the employee’s current ability to perform the essential functions of her job will be impaired by her medical condition or that she will pose a direct threat because of her medical condition.

Bottom Line

The ADA limits the scope of medical exams and when current employees may be required to undergo medical exams, regardless of whether they have a disability. Employers must show that a medical evaluation is job-related and consistent with business necessity. Courts will look at all relevant facts and circumstances to determine whether a medical exam is consistent with business necessity. As with most HR decisions, important factors, including how other similarly situated employees have been treated and whether the employer followed its policies and practices, will be taken into consideration. Keep in mind that the requirements and standards for medical exams and disability-related inquiries differ depending on the stage of employment. The requirements for disability-related inquiries and medical evaluations in the reasonable accommodation process may differ as well.

This article, slightly modified to note recent updates, was featured in the October 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.