4th Circuit’s Dueling Disability Discrimination Decisions Analyze ‘Illegal-Exam’ Claims Under ADA/Rehabilitation Act
By When can an employer require its employee to undergo a medical exam without running afoul of the Americans with Disabilities Act (ADA) or the Rehabilitation Act? In recent weeks, the Fourth Circuit enriched the case law on illegal-exam claims in two divergent opinions, ruling for the employee in EEOC v. McLeod Health, Inc., — F.3d —-, 2019 WL 385654 (4th Cir. Jan. 31, 2019) and for the employer in Hannah P. v. Coats, — F.3d —-, 2019 WL 664491 (4th Cir. Feb. 19, 2019).
The ADA and the Rehabilitation Act both prohibit covered employers from requiring an employee to undergo a medical exam “unless such examination . . . is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 1112(d)(4)(A). The EEOC’s enforcement guidelines provide that, ordinarily, to meet the “job-related and consistent with business necessity” standard, “the employer must reasonably believe, based on objective evidence, that either (a) the employee’s ability to perform an essential job function is impaired by a medical condition, or (b) the employee can perform all the essential functions of the job, but because of his or her medical condition, doing so will pose a ‘direct threat’ to his or her own safety or the safety of others.” The Fourth Circuit’s recent McLeod and Coats opinions touch on both the “direct threat” and impairment causing a failure to perform the essential functions scenarios, respectively.
EEOC v. McLeod Health, Inc., — F.3d —- , 2019 WL 385654 (4th Cir. Jan. 31, 2019): In McLeod Health, the Fourth Circuit reversed the lower court’s grant of summary judgment against the employee, finding a question of fact existed regarding whether at the time the company required the plaintiff to undergo a medical exam, it had a reasonable belief based upon objective evidence that the plaintiff posed a direct threat to her own safety.
The plaintiff, Cecilia Whitten, had worked for 28 years at McLeod health, a South Carolina-based health care system. Her job responsibilities included developing content for the company’s internal newsletter and she regularly traveled among McLeod’s various campuses to interview employees and report on company events. Plaintiff also had a life-long disability known as postaxial hypoplasia of the lower extremity, which caused her to experience mobility problems and occasionally trip and fall. It also caused her occasional fatigue. Despite these limitations, the plaintiff performed her job in a satisfactory manner for nearly three decades.
In 2012, plaintiff experienced three different falls over a span of four months. Only one of these falls occurred at work and did not result in any injuries. Plaintiff’s supervisor, Swindler, advised McLeod’s Human Resources of this fall and the company’s Occupational Health department determined that it needed to perform a fitness-for-duty medical exam on the plaintiff to ensure that plaintiff could “safely get to different locations to do her stories.” The Occupational Health department determined that the plaintiff was at a high fall risk in 75% of all work-related tasks and recommended a variety of restrictions on plaintiff’s work performance, including traveling no more than 10 miles from McLeod’s main office, thereby eliminating her ability to travel to the various McLeod campuses. McLeod determined that these restrictions nullified the purpose of her position and accordingly terminated her employment.
In subsequent litigation, the district court granted McLeod’s motion for summary judgment on the argument that it did not violate the ADA by requiring Plaintiff to undergo a work-related medical exam because it reasonably believed, based on objective evidence, that Whitten could not navigate to or within its medical campuses without posing a direct threat to herself.
However, the Fourth Circuit reversed, finding: “[A] reasonable jury, viewing the evidence in the light most favorable to Whitten, could conclude that in the context of Whitten’s employment history it was not reasonable for McLeod to believe that she had become a direct threat to herself on the job simply because (a) she had fallen multiple times recently and (b) her manager thought she looked groggy and out of breath. This is especially so given that the only one of Whitten’s recent falls to occur at work resulted in virtually no injury.” Id. at 882.
Hannah P. v. Coats, — F.3d —-, 2019 WL 664491 (4th Cir. Feb. 19, 2019): By contrast, in Coats, the Fourth Circuit ruled against a federal employee’s illegal-exam claim under the Rehabilitation Act. In this case, the employee worked for the Office of National Intelligence on a 5-year contract. And while the plaintiff had had a track record of positive work performance for some time, she developed a pattern of chronic tardiness and absences. Around the same time, she informed her employer that she had been diagnosed with depression. The Fourth Circuit observed that the employer had tried repeatedly to provide an effective accommodation for her depression, but the employee failed to comply with numerous flexible work plans offered by the employer. Id. at *1-3. The employer then requested that the employee participate in short-term mental health counseling through an employer-provided Employee Assistance Program (“EAP”). Despite these employer-provided accommodations, the employee’s tardiness and absences did not improve and when her contract expired, her employment ended and she was not considered for other positions.
Following a grant of summary judgment against the employee, the Fourth Circuit affirmed the lower court’s ruling against the employee’s illegal-exam claim for a variety for reasons. The appellate court noted that the employer’s policies surrounding the EAP clearly indicated that an employee’s participation was voluntary. Id. at *6. Moreover, the EAP counselor apparently did not conduct a medical examination and thus for both reasons the aforementioned scenario could not be a “medical examination” which was “required” by the employer. Id.
However, the Fourth Circuit further stated that, even if the EAP constituted a mandatory medical examination, the employer’s requirement was nonetheless job-related and consistent with business necessity. The court concluded that the employer, “had a reasonable belief that Hannah’s ability to perform the essential functions of her job was impaired by her repeated issues with attendance and timely reporting.” Id. at 6. Moreover, the employee’s emphasis on her job performance was found unpersuasive. “Hannah attempts to refute this by asserting that her job performance was excellent, but job performance alone does not create a genuine issue of material fact. Attendance was also an essential function of Hannah’s job, one the record amply demonstrates she was unable to fulfill when Appellee referred her to EAP.” Id.
While neither McLeod Health nor Coats are likely to be viewed as a dramatic change in ADA/Rehabilitation Act jurisprudence, the Fourth Circuit’s twin opinions add color to a less commonly addressed area of employment law.