Some of you are clutching your pearls and mouthing, “God, I hope so.”
Glass half full, I may be about to save you a call to your company’s employment lawyer. Glass half empty, you may be pretty screwed if the statute of limitations hasn’t already run on the potential Americans with Disabilities Act claims resulting from this practice.
But, hey, don’t shoot the messenger. I’m only saying this because I read this recent decision from a federal judge in Massachusetts. It involved a police department’s policy of requiring medical and psychological examinations for all officers who return from extended leave, regardless of the nature of their leave or job duties. The plaintiffs alleged that these practices violated the ADA.
In general, employers cannot: (a) require a medical examination, (b) ask employees whether they have a disability, or (c) inquire about the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. The ADA prohibits this.
The employer bears the burden of establishing whether an examination or inquiry is job-related and consistent with business necessity. At a minimum, the employer must limit its evaluation of the employee’s condition only to the extent necessary under the circumstances to establish the employee’s fitness for the work at issue. Plus, the employer must reasonably believe based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition.
Specifically, the police department argued that it must assess an individual’s physical and mental well-being before returning the officer to active duty because they face “unique stressors” on the job. So, they “need to ensure that the officers assigned to its neighborhoods and those patrolling the streets are fully capable of performing the duties required of a police officer to the best of their abilities.”
But the court wasn’t buying it. Specifically, the defendant could not establish a “business necessity to justify subjecting all officers to physical examination and/or psychological examination after three months and six months, respectively, when unrelated to an injury that caused the leave from the job.” (my emphasis)
Perhaps then, the police department could have gotten away with limited fitness-for-duty examinations for certain police officers whose conduct raised specific concerns about their particular abilities to perform their duties as police officers. But an across-the-board policy won’t work where the employer fails to identify specific concerns about one’s ability to perform their job duties.
Plus, the defendant failed to present any evidence to establish that being on leave for three months or six months causes an increased risk for a physical or psychological condition that could negatively impact an officer’s job performance.
Finally, if an officer’s doctor clears them to return to work, why does the police department need to clear them too?
The court concluded that the defendant’s policy violated the ADA for all of these reasons.
Technically, your mileage may vary if you lack easy access to excellent clam chowder, baked beans, and cream pie. But, I’d suggest that you run any fitness-for-duty examination policies by qualified employment counsel — don’t rely on a blog post for legal advice — to determine whether your business runs the risk of an ADA violation.