Franklin County Court of Appeals Finds Description of Employee’s Impairment in Request for Mental Examination is Not Evidence of Perceived Impairment

Yesterday, the Franklin County Court of Appeals affirmed summary judgment for the government employer on a perceived disability claim brought under the Ohio Civil Rights Act. Dalton v. Ohio Dept. Rehab. & Corr., 2014-Ohio-2658.   Both the facts and the opinion are a little odd.  According to the Court’s opinion, the plaintiff made some paranoid statements after he was terminated and reinstated following an arbitration award.  As a result of his odd statements, he was directed to submit to an independent medical examination to evaluate his mental ability to perform his job duties and potential promotion (which he was attempting to decline).  After he refused to submit to portions of the examination, he was terminated for insubordination and brought suit on the basis that he was referred to the IME on the basis of a perceived disability.  Although the Court found that the employer acted appropriately in requesting the examination on the basis of a potential impairment, it simultaneously concluded that the plaintiff had not been discriminated against on the basis of a perceived disability simply by being requested to submit to a medical examination.

Unlike the ADA, the OCRA does not contain a prohibition against employers requesting medical examinations in 4112.02.   Even under the ADA, employers are entitled to request employees to submit to medical examinations when job related and consistent with business necessity.  Yet, there is no discussion in the Court’s opinion about whether the request in this case was either job related or consistent with business necessity.  The Court concluded that the employer was permitted to request the medical examination by Ohio Administrative Code § 123:1-30-03 (concerning disability separations when an employee is unable to perform the essential functions of his position).  This regulation requires the employer to supply information about “the perceived disabling illness, injury or condition.”

Under ORC § 4112..01(A)(13), a plaintiff may be disabled if their employer regarded them as having a mental or physical impairment, without regard to whether the employer regarded them as substantially limited in their daily life activities as a result.”  Nonetheless, the Court concluded that requesting a fitness for duty exam or an independent medical examination  -- where the employer was required to supply information about the employee’s disabling illness, injury or condition – was not evidence that the employee was perceived as physically or mentally impaired.  While it would be understandable if the Court merely found that the requested IME was not an adverse employment action or that the employer was justified in requesting it, it seems confusing – odd even-- that the Court would in one paragraph note that the employer acted properly in describing the employee’s disabling illness but in an earlier paragraph state that this action was not evidence that the employer perceived the employee as impaired.

But there it is . . . . until and unless the Ohio Supreme Court clarifies.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.