Your fitness-for-duty employee medical examinations are job-related or consistent with business necessity. So, they pass muster under the Americans with Disabilities Act. But, what about the medical information you request from employees in connection with those exams?
Oh yeah, there’s that too…
Ask for too much info and you might you be violating not only the ADA, but also the Genetic Information Non-Discrimination Act.
Rut roh! More after the jump…
Last year, in this post about sending your Social Media Manager, Amanda Bynes, for a fitness for duty exam, I warned that there are some hoops you may need to jump through under the Americans with Disabilities Act.
(Maybe this year, you’ll want to do the same for your drug counselor, Wes Welker).
In a recent press release touting a lawsuit filed by U.S. Equal Employment Opportunity Commission, the administrative agency alleges that a Minnesota employer didn’t violate the law with its required fitness-for-duty exam. However, the EEOC does claim that the employer violated both the ADA and GINA by requiring an employee to submit overbroad medical release forms to have a fitness-for-duty examination. (GINA prohibits employers from requesting or requiring that employees disclose genetic information).
Here’s more from the press release:
“In its lawsuit, the federal agency contended that Cummins [the employer] required an employee to sign various medical release forms that sought irrelevant information. Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said.”
“The EEOC maintains that by requiring the employee to execute an overly broad release, Cummins was making disability-related inquiries that were not job-related or consistent with business necessity. Such alleged conduct violates the Americans with Disabilities Act (ADA). Further, the EEOC asserts that the releases presented to the employee would have resulted in the disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC argues that Cummins also violated the anti-retaliation provisions of the ADA and GINA by firing the employee for his good-faith objections to the releases.”
Obviously, these are just EEOC allegations. However, the EEOC offensive provides two takeaways for employers. First, make sure that your fitness-for-duty medical examinations are job-related and consistent with business necessity. And, second, when you request medical information in connection with those examinations, ensure that the information sought is narrowly tailored, and specific to the job.