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4th Circuit’s Dueling Disability Discrimination Decisions Analyze ‘Illegal-Exam’ Claims Under ADA/Rehabilitation Act

By Andrew J. Henson

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.

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Procedure Matters: Fourth Circuit Holds 180-Day Waiting Period for Federal Employees to File Suit is Not Jurisdictional

By Zachary Anstett

In a published opinion on January 8, 2019, the Fourth Circuit concluded that Section 2000e-16(c), which applies to federal government workers, is not a jurisdictional requirement. The 180-day waiting period is instead a prudential prerequisite to suit. Because of the Court’s holding, employers will need to use Rule 12(b)(6) when claiming that the plaintiff failed to wait the required 180 days.

This case, Stewart v. Iancu, 17-1815, 2019 WL 122868 (4th Cir. Jan. 8, 2019), involved a federal employee alleging, among other things, disability discrimination, retaliation, and hostile work environment under the Rehabilitation Act and Title VII. The panel, consisting of Chief Judge Gregory and Judges Wynn and Motz, reversed the District Court and remanded for further proceedings.

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Is the EEOC Trying To Require Unforeseeable Intermittent Leave As a Reasonable Accommodation Under the ADA (Again)?

By Joseph S. Murray, IV

The EEOC filed two lawsuits in the past couple of months that show one of two things: (1) massive companies are cruel and heartless, with HR Departments that don’t understand the ADA, or (2) the EEOC, despite its own statements in guidances and regulations, continues to believe that the ADA allows employees to take repeated, unforeseeable intermittent leave.[1]

In August, the EEOC filed a lawsuit against Macy’s, Inc., alleging Macy’s fired an employee with asthma for a one-day absence due to complications arising from her disability. EEOC Sues Macy’s For Disability Discrimination (Aug. 16, 2017). In late September, the EEOC filed a lawsuit against Whole Foods Market Group, Inc. alleging that Whole Foods terminated an employee with polycystic kidney disease after she missed work two times in December 2015, due to hospitalizations related to her kidney disease. Whole Foods Market Sued by EEOC for Disability Discrimination (Sep. 28, 2017). In both cases, the EEOC alleges that the companies violated the ADA by failing to modify their leave and absentee policies as reasonable accommodations to allow the employees to take leave related to their disabilities.

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