Editor's Note
Before You Require A Medical Exam
Medical exams are a big deal. They involve the most personal and private information about us. Employers don't get to order medical exams just because someone is acting weird or upset.
On the other hand, public safety is also a big deal. When employees have the capacity to harm people with 25 ton vehicles, weapons, or in an operating room, sometimes it's appropriate to make sure that an employee is okay to work.
There are lots of laws that apply to medical exams as well. In California, it starts with the state Constitution's right of privacy. And most professions that are regulated by state or federal law including the ones that require licenses, may have conditions that allow for or require fitness for duty determinations.
The general rule is that employers can't require employees to undergo medical exams unless it's required to make sure they are capable of performing the work. This comes up in pre-employment physicals, after a workers' compensation or other injury, and sometimes when there is good cause to believe the person may injure themselves or others.
The other general rule on employee physical exams, is when in doubt, don't. At least until you talk to an employment lawyer who can review the potential state and federal laws that may apply.
And this article is about the ADA, which restricts the circumstances that employers can require medical exams of any employee, regardless of whether they have a disability.
- Heather Bussing
Most employers are aware that, under the Americans with Disabilities Act (ADA), disability-related inquiries and medical examinations of employees may only be required when such inquiries and examinations are “job-related and consistent with business necessity.” However, employers may be less familiar with the fact that the ADA’s limitations on medical inquiries and examinations apply to both employees with a disability and employees without a disability. Indeed, a recent appeals court decision highlights the fact that employers may be liable for monetary damages and other relief for violating the ADA’s medical inquiry and examination limitations, even if the employee subjected to the medical inquiry or examination does not have a disability or perceived disability.
In Nawara v. Cook County, John Nawara, a correctional officer for the Cook County Sheriff’s Office, was involved in multiple heated interactions with his supervisor, Human Resources, and an occupational nurse. Based on these incidents, the Sheriff’s Office placed Nawara on paid leave and required him to provide signed medical authorization forms and undergo a fitness-for-duty examination before returning to work. Nawara refused to submit the requested medical authorization forms and, as a result, was eventually transitioned to unpaid leave.
While on leave, Nawara filed suit alleging that the Sheriff’s Office had violated the ADA’s restrictions on medical inquiries and examinations for employees. After a trial, the jury concluded that the Sheriff’s Office’s requests for Nawara’s medical records and fitness-for-duty examination requirement violated the ADA, but it chose not to award any damages to Nawara. Nawara then asked the trial court to order the Sheriff’s Office to pay him back pay and restore his seniority. The trial court granted Nawara’s request to restore his seniority but denied his request for back pay, concluding that Nawara was required to have a disability or perceived disability in order to obtain back pay for a violation of the ADA’s medical inquiry and examination provisions. Both parties appealed the trial court’s decision.
On appeal, the U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) noted that, during trial, Nawara had never claimed that he was disabled or that the Sheriff’s Office perceived him to be disabled. Nevertheless, the Seventh Circuit concluded that an employer’s violation of the ADA’s medical inquiry and examination provisions is discrimination on the basis of disability regardless of whether the employee has a disability or perceived disability. Consequently, the Seventh Circuit found that the ADA’s remedies applied to Nawara, and Nawara was authorized to recover back pay and have his seniority restored.
The Nawara case serves as a reminder that situations involving mandatory medical inquiries or examinations for employees are complex and are often difficult for employers to navigate. Employers with questions regarding the permissibility of medical inquiries or examinations should consult with experienced employment counsel before requiring an employee to provide medical information or submit to a medical examination to ensure that such actions do not violate the ADA.
