Best Ohio Disability Discrimination Attorney Answer: Can my employer force me to undergo medical testing? Can I refuse a medical at work? Can employers ask about medical conditions during interviews? Can you be fired for medical reasons? My employer knows I have a disability and now they are telling me I have to get a medical exam, is this legal? My employer says that I have to have a medical exam before they hire me, is that right?
A fun fact about me, I broke my arm lifting weights my first year of law school. This wasn’t just any break, I had a nasty compound fracture that required surgery to fix. I guess you could say I really did a number on myself! After the surgery, I was in a cast formonths. When I finally got the cast off, I realized that I had a nice nine-inch scar on my forearm. I must admit I was less than proud of my battle scars. To
avoid notice and the inevitable follow up questions I would wear long sleeve shirts almost everywhere, especially at work. My biggest fear was that an employer would see my scar and ask to follow up questions about my medical history.
Believe it or not, back in the day, a lot of employers would ask job applicants and current employees to provide information about their medical, physical and/or mental health. This sensitive medical information would be used to exclude and discriminate against people with disabilities or perceived disabilities. These medical exams would specifically target applicants with invisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness. Employers would refuse to hire these applicants even if they had the ability to perform the job.
Fortunately, Congress created the Americans with Disabilities Act (“ADA”) in 1990. Our employment discrimination attorneys have blogged before regarding the ADA’s requirements to provide reasonable accommodations to disabled workers through the interactive process. (See How Do I Discuss A Reasonable Accommodation With My Employer?; Is A Position Transfer A Reasonable Disability Accommodation?; Is Time Off A Reasonable ADA Accommodation?). Our employment law lawyers have also discussed that ADA makes it illegal to fire an employee because of a disability or perceived disability, which would give rise to a claim for wrongful termination. (See Is It Wrongful Termination To Fire Disabled Workers?; Can My Boss Fire Me Because of My Medical Condition?; Can I Be Fired In A Reduction In Force Because I’m Disabled?).
Today, our employment discrimination lawyers are focusing on another part of the ADA. The ADA also contains provisions that have severely limited what disability-related inquiries and medical examinations employers are allowed to request and when an employer is allowed to make these inquiries. These ADA provisions reflect Congress’s intent to protect the rights of applicants and employees to be hired, or retained based only on merit, and not their disability status.
Under the ADA, an employer’s ability to require that an applicant employee undergoes a medical examination, or to make general disability related inquiries is broken down into three separate stages: the pre-offer stage, the post-offer stage, and the employment stage.
Can I be asked about my medical history as part of an interview? As the name suggests, the first stage, the pre-offer stage is the time period before a potential employer has made a job offer of employment. The ADA forbids any disability related inquiries or requires medical examinations, even if the inquiries or examinations are related to the job, during the pre-offer stage.
Can I be forced to take a medical exam as a condition of a job offer? The second stage, the post offer stage, is the time after a job applicant has been given a conditional job offer, but before they have started work. In the second stage, an employer is allowed to make disability-related inquiries and request medical examinations, even if these inquiries and examinations are not related to the job, as long as the employer conducts these inquiries and examinations for all so for all potential employees to whom the company has extended a job offer in the same job category.
Can an employer require me to disclose medical information? The third stage covers any time after employment begins. While an individual is employed an employer may make disability-related inquiries and require medical examinations only if these inquiries and examinations are job-related and consistent with business necessity.
However, as the Fourth Circuit Court of Appeals recently reinforced, an employer is not allowed to make disability related inquiries or require medical examinations simply because they become aware of an employee’s disability.
Specifically, in EEOC v. McLeod Health, Inc., Fourth Circuit held that an employer is not allowed to force a long term employee to submit to a medical examination just because it came to the employer’s attention that the employee happened to have a disability or perceived disability. (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney).
Cecelia Witten had worked for McLeod Health for 28 years. Cecelia essentially worked at the editor of McLeod’s internal employee newsletter. Cecelia’s job involved interviewing employees about current hospital events and publishing articles about these events. Cecelia’s job duties would require her to travel to the company’s various locations which were located within an approximate 100-mile radius.
Unknown to McLeod when they hired her, Cecelia had a physical disability Medically referred to as “postaxial hypoplasia of the lower extremity.” This physical disability caused Cecelia to have some issues with mobility. More specifically, Cecelia’s condition would at times cause her to trip or fall. It would also cause Cecelia to become fatigued more easily. Cecelia was also unable to sit or stand in the same position for long periods of time. In 2012, Cecelia unfortunately, had three falls within a four-month period. However, only one of these falls occurred while Cecelia was at work and she did not suffer a serious injury. None of these falls caused Cecelia to miss time from work.
During this time Cecelia began to receive complaints from her manager. Cecelia’s manager would repeatedly express concerns about Cecelia’s job performance. Some of these complaints involved missed deadlines, showing up to work late and being “less than enthusiastic” about the McLeod’s internal messaging system. Cecelia’s manager complained to the Human Resources (HR) that Cecelia’s performance issues were potentially due to health problems, or a disability. Cecelia’s manager also reported Cecelia’s fall to HR. After Cecelia’s manager’s complaints it was recommended that the manager’s concerns be forwarded to McLeod’s occupational health department. The occupational health department then determined that Cecelia should be required to undergo a fitness-for-duty medical exam.
During her forced medical exam, Cecelia provided her medical history as well as an explanation of her recent falls. After the initial examination, it was decided that Cecelia should undergo additional testing. In the meantime, Cecelia was placed on paid administrative leave until the testing and results were completed. (See Can My Boss Force Me To Take Medical Leave?). The medical examination eventually determined that she was a “[h]igh fall risk in 75% of all work related task[s].” After receiving these medical results, McLeod placed Cecelia on several work restrictions, including travel limited to 10 miles from her main office, the use of a motorized scooter and a specific parking space. In response, Cecelia decided to submit an accommodations form, believing that it was required in light of the recent restrictions.
In light of Cecelia’s requested accommodations, McLeod told her not to return to work because the accommodations prevented her from traveling to all of the company’s locations. Cecelia was then placed on unpaid medical leave for six months and after those six months, McLeod decided to terminate her. Following her termination, Cecelia did the right thing and filed a claim alleging that she was forced to undergo a medical exam without cause and was ultimately terminated because of her disability. However, after the claims were brought to court, they were dismissed in favor of the employer.
Cecelia did not stop there; she appealed her claim. On appeal, the appellate court determined that there was sufficient evidence supporting a finding that traveling to the various campuses was not actually an essential function of Cecelia’s job. Specifically, there was evidence that Cecelia’s employee interviews could be taken over the phone. The appellate court also found that when McLeod required Cecelia to take the medical fitness for duty exam, McLeod did not have a reasonable belief that Cecelia’s postaxial hypoplasia of the lower extremity made her unable to perform her job safely. Because McLeod lacked this reasonable belief it was unlawful for them to force Cecelia to undergo a medical examination, and even more unlawful to terminate her upon receiving the results of the medical examination.
If your employer or your prospective employer has made disability inquiries or forced you to undergo a medical examination, or if you have requested an accommodation for your disability and your employer has denied you, you need to call the right attorney. Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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