Requesting a Reasonable Accommodation is Not a Protected Activity Under Ohio Retaliation Law

The Crawford County Court of Appeals last month affirmed an employer’s summary judgment on claims asserting that the plaintiff had been terminated for requesting a reasonable accommodation.  Hall v. Crawford County Job and Family Services, No., 2022-Ohio-1358.  The Court held that requesting a reasonable accommodation is not a protected activity under Ohio law which can support a retaliation claim.  Rather, denying a reasonable accommodation may be unlawful discrimination, but the request itself is not a protected activity for purposes of a retaliation claim.  Further, the Court found that the plaintiff had voluntarily disclosed her disability to her employer and it was justified in requesting a fitness-for-duty examination when she claimed her disability adversely affected her job performance and submitted an FMLA request. 

According to the Court’s opinion, the plaintiff voluntarily disclosed to her supervisor that she suffered from MS which sometimes made her mind foggy and could impair her job performance.    She brought it up again during a March 20 pre-disciplinary conference and was recommended to apply for FMLA leave.  Although she said she objected and did not require it, she submitted FMLA paperwork on March 26, which did not mention her MS diagnosis.  She was also requested to submit to a fitness-for-duty examination.   She was given a three-day suspension and ultimately terminated.  She filed suit, claiming retaliation and improper medical inquiries.  The trial court found that she had been provided with a reasonable accommodation, could not prove causation, etc.

The plaintiff alleged that the employer’s request for a fitness for duty examination was an improper medical inquiry.  However, the court found that the plaintiff voluntarily disclosed her MS disability and claimed that it could be impairing her job performance.  Moreover, once she had requested FMLA leave and a reasonable accommodation, the employer was entitled to request information about the nature and extent of her alleged disability.

The plaintiff alleged that she was terminated in retaliation for requesting a reasonable accommodation.    The court found that requesting a reasonable accommodation is not a protected activity under Ohio Revised Code Chapter 4112 which could support a retaliation claim.  While terminating an employee for requesting a reasonable accommodation might be unlawful discrimination, it does not fit within the types of activities that constitute protected conduct under Ohio law, such as opposing discrimination, testifying, participating in an investigation, etc.

The plaintiff denied that she had attempted to pursue a failure-to-accommodate claim, and objected the trial court granting summary judgment to the employer as though she had done so.  The appellate court refused to address this argument. 

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. 

EEOC Proposes to Regulate Employer Wellness Plans Under GINA and ADA to Be More Consistent with HIPAA and ACA.

Last month, the EEOC proposed to amend its regulations under Title II the Genetic Information Non-discrimination Act (GINA) governing employer wellness programs that are part of group health plans (and are already subject to similar limitations under HIPAA and the ACA).  It also signaled that it might issue regulations governing the electronic security of employer records containing genetic information and wellness programs that seek the same information but are not part of a group health plan (which is already subject to HIPAA).   Unlike the current GINA regulation at 29 C.F.R. §1635.8(b)(2)(ii), the proposed regulations would permit an employer to provide financial and non-financial “inducements” (including penalties) in exchange for information gathered during a Health Risk Assessment (HRA) about the “current and past health status” of the employee’s spouse, if the spouse voluntarily consents, provides written authorization, and is covered by the health plan and if the program would have a reasonable likelihood of improving health or preventing disease.  This information would include, for instance, blood pressure, cholesterol, glucose levels, etc.  The proposed regulation does not similarly cover information about the employee’s children or the results of any genetic tests or other genetic information about the spouse. These regulations are similar to last April’s proposed regulations to govern employee wellness plans under the ADA, which also permit up financial incentives up to 30% of the cost of the health coverage.  In addition, the proposed regulations prohibit employers from conditioning the incentive on waiving the confidentiality of the genetic information (or agreeing to its sale).  

The EEOC’s current GINA regulations only permit an employer to seek genetic information (i.e., medical histories and information about an employee’s spouse, parents or children) in connection with a wellness program if, among other things, a financial incentive is not conditioned on the provision of the information.  The employer’s program may include a HRA or questionnaire seeking such information, but only if it is made clear that the financial incentive “will be made available whether or not the participant answers questions regarding genetic information.”  This existing regulation will still govern questions about the employee’s children, but a limited exemption is being created by the proposal to permit inducements for an employee’s spouse to participate in the wellness program and provide information about his or her current or past health status. 

As mentioned and like the proposed ADA regulations and existing HIPAA/ACA regulations, the program seeking this information must have a reasonable chance of improving health or preventing disease.  An employer can run afoul of this requirement when it seeks genetic information but then fails to provide follow-up information or advice, makes it overly burdensome (in time, intrusiveness or expense) for the participants to earn the reward (or avoid the penalty), or merely shifts costs from the employer to the employees based on their health. 

A HRA may include a questionnaire or medical examination, or both.  It must still comply with existing GINA regulations regarding consent, authorization, and confidentiality, etc.  

As mentioned, the financial incentive is limited to a similar 30% amount earlier discussed in the proposed ADA regulations (and apply under HIPAA and ACA for only health contingent programs).  However, while the ADA limitation was for employee-only health costs, the GINA provision can apply to the cost of family or employee +1 health plans, less the amount of incentive for the employee: 

The maximum amount of the inducement for an employee's spouse to provide information about current or past health status may not exceed 30 percent of the total cost of coverage for the plan in which the employee is enrolled less 30 percent of the total cost of self-only coverage.  For example, if an employer offers health insurance coverage at a total cost of $14,000 for employees and their dependents and $6,000 for self-only coverage, the maximum inducement the employer can offer for the employee and the employee's spouse to provide information about their current or past health status is 30 percent of $14,000, or $4,200. The maximum amount of the $4,200 inducement that could be offered for the employee's spouse to provide current or past health status information is $4,200 minus $1,800 (30 percent of the cost of self-only coverage), or $2,400.

 . . .The maximum amount of the inducement the employer may offer to the employee for participation is 30 percent of the cost of self-only coverage. For example, if an employer offers health insurance coverage at a total cost of $14,000 for employees and their dependents and $6,000 for self-only coverage, the maximum inducement that may be offered for the employee to respond to disability-related inquiries or take medical examinations is $1,800.

The EEOC explains that “the term “inducements” includes both financial and in-kind inducements, such as time-off awards, prizes, or other items of value, in the form of either rewards or penalties.”  Employers remain free to structure their incentives in a variety of ways, only some of which are subject to GINA:

However, an employer would be free to offer all or part of the $2,400 inducement in other ways as well, such as for the employee, the spouse, and/or another of the employee's dependents to undertake activities that would qualify as participatory or health-contingent programs but do not include requests for genetic information, disability-related inquiries, or medical examinations. Thus, in the example above, an employer could offer $1,800 for the employee to answer disability-related questions and/or to take medical examinations as part of a health risk assessment, could offer the same amount for the employee's spouse to answer the same questions and to take the same medical examinations, and could offer the remaining $600 for the employee, the spouse, or both to undertake an activity-based health-contingent program, such as a program that requires participants to walk a certain amount each week. Additionally, a wellness program may offer inducements in accordance with HIPAA and the Affordable Care Act without regard to the limits on apportionment set forth in this proposed rule if neither the employee nor the employee's spouse are required to provide current or past health status information, so long as the wellness program otherwise complies with the requirements of the ADA and GINA.

Title I of the ADA prohibits medical examinations and inquiries except in certain limited circumstances, such as “voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.”   42 U.S.C. § 12112(e)(4)(B).  Moreover, this information must remain subject to the same confidentiality obligations that cover other disability-related inquiries and examinations, although the EEOC proposes to extend the protections for wellness program information.   Under the EEOC’s recently proposed ADA regulations, “an employer may offer limited incentives up to a maximum of 30 percent of the total cost of employee-only coverage, whether in the form of a reward or penalty, to promote an employee’s participation in a  wellness program that includes disability-related inquiries or medical examinations as long as participation is voluntary.”  Wellness programs which do not involve medical inquiries or testing would not be subject to the proposed ADA limitations on financial incentives.  The EEOC also indicated that employees with disabilities should receive reasonable accommodations in order to receive the financial incentives or avoid the penalties. Employers may not take adverse action against employees who refuse to participate or fail to achieve certain health outcomes.   Finally, the EEOC invited comments on, among other things, whether it should raise the incentive percentage to 50% (as permitted by HIPAA) for tobacco cessation programs which include nicotine testing and other biometric measures.   

The proposed GINA regulations incorporate some of these issues:

(vii) Nothing contained in paragraphs (b)(2)(ii) through (vi) of this section limits the rights or protections of an individual under the Americans with Disabilities Act (ADA), as amended, or other applicable civil rights laws, or under the Health Insurance Portability and Accountability Act (HIPAA), as amended by GINA. For example, if an employer offers an inducement for participation in disease management programs or other programs that promote healthy lifestyles and/or require individuals to meet particular health goals, the employer must make reasonable accommodations to the extent required by the ADA; that is, the employer must make “modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities” unless “such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.”  . . . In addition, if the employer's wellness program provides (directly, through reimbursement, or otherwise) medical care (including genetic counseling), the program may constitute a group health plan and must comply with the special requirements for wellness programs that condition rewards on an individual satisfying a standard related to a health factor, including the requirement to provide an individual with a “reasonable alternative (or waiver of the otherwise applicable standard)” under HIPAA, when “it is unreasonably difficult due to a medical condition to satisfy” or “medically inadvisable to attempt to satisfy” the otherwise applicable standard.

The EEOC is considering even more modifications of the GINA regulations and seeks comments on the following issues: 

·        Whether employees should still receive inducements if the spouse refuses to disclose the requested information, but provides medical certification that the employee is under active medical treatment;

·        Whether the authorization requirement be limited only to wellness programs that offer more than de minimis rewards or penalties and how that would be defined;

·        Whether employers should be required to implement more specific electronic protections of medical and genetic information that is stored electronically to avoid hackers breaching the confidentiality of those records;

·        Whether employers offer (or are likely to offer in the future) wellness programs outside of a group health plan or group health insurance coverage that use inducements to encourage employees' spouses to provide information about current or past health status as part of a HRA, and the extent to which the GINA regulations should allow inducements provided as part of such programs. 

The proposed ADA regulations would require changes in gathering, using and maintaining information gathered under a wellness plan.  It would require the employer to notify employees “what medical information will be obtained, how the medical information will be used, who will receive the medical information, the restrictions on its disclosure, and the methods the covered entity uses to prevent improper disclosure of medical information.” It also would mandate that “medical information collected through an employee health program only may be  provided to a covered entity under the ADA in aggregate terms that do not disclose, or are not reasonably likely to disclose, the identity of specific individuals, except as needed to administer the health plan and except as permitted under 1630.14(d)(4).”  While HIPAA would govern when the employer is the plan administrator, the EEOC proposes its own requirements to essentially extend HIPAA’s Privacy Rule to employer non-administrators receiving information from a wellness program: “the aggregate information that the employer may receive from the wellness program under section 1630.14(d)(6) must be deidentified in accordance with the HIPAA Privacy Rule. Further, other disclosures of protected health information from the wellness program may only be made in accordance with the Privacy Rule.”

 

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 be changed or 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.

Ohio Appeals Court Denies Firefighter’s Disability Discrimination Claim

Earlier this month, the Ohio Court of Appeals affirmed a city employer’s summary judgment on a disability discrimination claim brought by a former Battalion Chief with Parkinson’s.  Yost v. Sandusky, 2015-Ohio-805.    Importantly, this case involved only the Ohio Civil Rights Act and not the ADA.   The Court concluded that the progressive nature of Parkinson’s and the opinions of the medical evaluations justified the City requesting multiple medical examinations and eventually removing the plaintiff from duty when medical examinations revealed that he could no longer safely perform his duties.

In 2005, the plaintiff informed the Chief of his Parkinson’s diagnosis and that he did not require any restrictions or accommodations.  Thereafter, his supervisor, the assistant chief, conducted internet research and in 2008 reported concerns about the plaintiff’s abilities to the Chief relating to his gait, fatigue, forgetfulness and increased hand tremors.  The plaintiff was requested to submit to a number of medical examinations to determine his fitness for duty.   His neurologist released him to work without any restrictions, but noted that his abilities might fluctuate.

Six months later, the plaintiff was again requested to be evaluated due to perceptions that his condition had deteriorated.  This time, he was evaluated by a physician chosen by the employer.  This physician put only two restrictions on the plaintiff (to avoid fall hazards and confined spaces), but also recommended further evaluation by a Cleveland Clinic neurologist (who released the plaintiff to work without any restrictions).  Because the prior restrictions were essential job functions, he was confined to light duty or paid sick leave pending his release to return to work.   He could not earn overtime compensation while he was medically restricted.

In the meantime, the City elected to abolish the Battalion Chief position and demote the two incumbents to Captain or give them the option to retire.  The plaintiff accepted the demotion, but unsuccessfully appealed the abolishment of his position.   Ten months after being reinstated to work, he did not pass his annual fitness for duty examination in May 2010 by the employer’s physician.  In particular, the doctor concluded that the plaintiff

was unable to perform the essential functions of performing fire-fighting tasks including wearing a breathing apparatus, climbing six or more flights of stairs, wearing heavy, insulated protective gear, searching, finding and rescue dragging, dragging water-filled hoses, climbing ladders and operating from heights, and unpredictable physical  exertion.

 The Cleveland Clinic neurologist agreed with this conclusion.  Accordingly, the plaintiff utilized his accrued sick leave until his retirement in 2011.

The plaintiff claimed that he suffered adverse employment actions because his employer perceived him as disabled when he was able to perform his job.  In particular, he was placed on light duty and leave twice, denied overtime, and subjected to a number of physical examinations over a two year period.  The City countered that his job required him to demonstrate “the ability to work under pressure or in dangerous situations, to keep physically fit, to use fire-fighting equipment,  . . . “ and other physical demands, such as ““climbing, balancing, stooping, kneeling, crouching, crawling,reaching, handling, seeing, hearing, [and] smelling.”  The Court concluded that the City was justified in relying on the medical professionals it retained in evaluating the plaintiff’s abilities.

In addition, the Court placed great reliance on the discussion of Parkinson’s in the National Fire Protection Association guidelines:

Parkinson’s and other diseases with functionally significant tremor or abnormal gait or balance compromise the member’s ability to safely perform essential job tasks 1, 2, 4, 6, 7, 8, and 9, and the physician shall report the applicable job limitations to the fire department. (Emphasis added.)

The Court concluded that the City’s requests for medical examinations and ultimately removing him from duty was reasonable in light of his condition and the medical evaluations:

Reviewing the chain of events, including his placement on leave and eventual retirement, we cannot find that appellant has created a prima facie showing of “regarded as disabled” disability discrimination. As noted by appellant’s neurologist, Dr. Leslie, in November 2008, “fluctuations in his abilities may fluctuate” and the disorder is  progressive in nature. It was entirely reasonable to find changes in appellant’s abilities within a span of six months to a year. This also supported a close monitoring of appellant’s functioning, including physical examinations. Appellant’s first assignment of error is not well-taken.

The Court also rejected the plaintiff's retaliation claim on the grounds that the City's actions were justified and another court had upheld the abolishment of his position (and that of a non-disabled Battalion Chief) as justified by economic conditions.

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.

Sixth Circuit: Drug Testing Could Be Prohibited Medical Examination or Inquiry Under ADA

On Tuesday, the Sixth Circuit issued an interesting decision about drug testing and medical inquiries under the ADA which involved a group of plaintiffs who did not have disabilities covered by the ADA.   Bates v. Dura Automotive Systems, No. 11-6608 (6^th Cir. 8-26-14).  After a number of substance abuse issues at the manufacturing facility, the defendant employer began testing employees for any controlled substances which contained warnings about operating machinery.  Some of these substances were contained in lawfully prescribed medications for various medical conditions, although none of the plaintiffs claimed a disability under the pre-2008 ADA.  When an employee tested positive, they were to notify only a third-party facility of the medication being taken and the employees were warned to cease using that medication.  If the employee tested positive again, they were fired.  The plaintiffs filed suit claiming the testing constituted unlawful medical examinations and inquiries under the ADA.  The trial court ruled that the tests were both medical examinations and inquiries and submitted to a jury whether the employer was justified in making the request.  The jury ruled in favor of the plaintiffs and awarded compensatory and punitive damages of over $870,000.  On appeal, the Court remanded the matter for reconsideration as to whether the tests were medical examinations or inquiries, but affirmed the jury verdict that the employer lacked a business justification since there were other, less obtrusive means of improving workplace safety which the employer had not utilized.  On remand, a factual dispute remained as to whether there was any diagnostic component to the drug testing program.

According to the Court’s opinion, the employer conducted urinalysis testing of all employees for 12 substances, some of which are contained in prescription medications.   Positive results were referred to a Medical Review Officer. 

 

In reviewing the test results, MROs questioned employees about medical explanations, sometimes requesting prescription information or documentation from the employee’s physician. If the MRO determined that the employee had a valid reason for the non-negative result, including use of prescription medications, the MRO changed the final test result to negative.

So far, so good. No employees were ever asked about their medical conditions and the employer never knew what medications the employees took.  However, the contractor administering the test decided to ignore the MRO’s revisions, “opting instead to prohibit any employee use of machine-restricted drugs.”  The employees were then fired after testing positive again for a lawfully prescribed medication after being warned to discontinue the drug.  One of the plaintiffs was terminated following a random drug test.  No individualized assessment was made about the threat posed by the employee.

The plaintiffs claimed that the drug testing was an unlawful medical examination and inquiry and that the employer was using a qualification standard to screen out individuals with disabilities.  The second theory was rejected because the plaintiffs – who were not disabled – lacked standing to assert it. Bates v. Dura Auto. Sys., Inc. (“Bates I”), 625 F.3d 283, 285–86 (6th Cir. 2010). 

Under the ADA: “[t]he prohibition against discrimination  . . . shall include medical examinations and inquiries.” 42 U.S.C. §12112(d)(1).  Employers  may not “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  Id. at 12112(d)(4).   Nonetheless, “a test to determine the illegal use of drugs shall not be considered a medical examination.”  Id. at §12114(d)(1).

The employer’s drug testing program was not protected by the safe harbor in §12114(d)(1) because it encompassed a test for lawful drug use, not just illegal use of drugs.

The Court relied almost exclusively on the EEOC’s Enforcement Guidance on Disability Related Inquiries and Medical Examinations, which identifies eight factors to consider whether a test is a medical examination:

(1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a medical setting; and, (7) whether medical equipment is used.

The eighth factor is “whether ‘the employer [is] trying to determine the applicant’s physical or mental health or impairments.’” 

The trial court erred, among other things, by incorrectly believing that because a random urinalysis test for alcohol abuse was illegal, then a random urinalysis for lawful prescription drugs must also be illegal.  The Court examined the factors from EEOC enforcement guidance concerning medical examinations and noted that the tests were administered in a medical setting, by medical professionals and were not invasive.  However, the most important factors – whether the test was designed to reveal a physical or mental impairment or determine the employee’s health – were arguably weighted against the drug tests being medical examinations because there was conflicting evidence that the employer and its contractor did not inquire into the basis for the prescriptions and focused exclusively on whether they contained warnings against operating machinery.  As noted by the Court:

the test-design factor and the EEOC definition of medical examination would permit a reasonable jury to decide the matter in Dura’s favor. If one credits Dura’s explanation and the objective evidence shows its drug-testing protocol is unlikely to reveal employees’ medical information, then the testing does not qualify as a medical examination under the EEOC definition.

Moreover,

[w]hen asked at oral argument how Dura’s third-party administered test exposes information about employee health, the EEOC responded “it can,” noting that the presence of anti-seizure medication would divulge that specific condition. (O.A. at 34:40–35:00.) In the absence of specific evidence making this connection, we decline to elevate this possibility into the probability necessary for ruling on this issue as a matter of law. Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocol—with a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs—reflects Dura’s effort to avoid obtaining information about employees’ medical conditions and to avoid discriminating against all employees who take prescription drugs.

                . . . viewing the evidence in its favor, we cannot say as a matter of law that Dura used FFS’s drug tests to seek information about plaintiffs-appellees’ medical conditions, or even that such revelations likely would result.

The Court applied a similar analysis as to whether the tests constituted prohibited disability-related inquiries.   The EEOC’s own guidance “defines disability-related inquiry as ‘a question (or series of questions) that is likely to elicit information about a disability.’”    The employer denied asking employees about their general prescription use.  Rather, it was only interested in drugs with warnings against operating machinery. The EEOC’s enforcement guidance did not contain blanket prohibitions against asking about drug use or even prescription drug use.  Accordingly, “a jury could reasonably conclude that [the employer] implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.” 

A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability. As noted above, plaintiffs-appellees point to no evidence showing that such a limited disclosure likely reveals information about a disability. . . .

The Court also reversed the trial court’s use of a jury instruction which necessitated that the drug testing contractor was the employer’s agent and its actions were necessarily the employer’s actions.  Instead, the Court concluded that the employer could use a contractor to shield itself from proscribed knowledge about the employee’s conditions.   While an employer may not contract with an entity to violate the ADA, a jury

may consider [the contractor’s] role in [the employer’s] drug-testing protocol to the extent that it bears on [the employer’s] intent and/or whether the testing would likely reveal plaintiffs-appellees’ physical and mental-health conditions to [the employer]. But the jury ought not be instructed to assume that, because [the contractor] obtained additional information during the testing protocol, [the employer] also sought to obtain that information. The district court’s instructions should so reflect  . . .

Despite the foregoing, the Court agreed that if the drug tests were medical examinations or inquiries, then the jury was entitled based on the evidence presented at trial to find that the employer lacked a job-related justification or business necessity.

The EEOC enforcement guidance explained that: 

a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.

The employer bears the burden of proof on this issue.  The Court noted that there were disputed facts, but the jury was entitled to give greater weight to the plaintiff’s evidence:

[The employer] presented some evidence at trial supporting its drug testing—e.g., testimony and video evidence of the “congested” nature of the Lawrenceburg facility and numerous hazards there, including machinery, glass, chemicals, and forklifts. Nonetheless,  plaintiffs-appellees also presented evidence consistent with a reasonable jury conclusion that [the employer’s] showing fell short of the high standard for job relatedness and business necessity. For example, [one manager] testified that Dura neglected to make individualized risk determinations of jobs, tools, and work stations in the facility. [Two managers] also admitted that they failed to consider the plaintiffs’ abilities or the risk that they posed by taking medications. The jury could infer from this evidence that [the employer] lacked a reasonable belief, based on objective evidence, that plaintiffs-appellees’ medications impaired their abilities to do their jobs or made them dangerous to others. Further, [a manager] testified that employees had unrestricted access to hazardous parts of the facility and were not required to wear hard hats. Indeed, the video of the facility showed individuals with loose clothing, jewelry, and long hairstyles, in apparent violation of [the employer’s] safety policies. This evidence reasonably supports the conclusion that [the employer] could have advanced its interest in employee safety by other, less intrusive means.

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. 

Sixth Circuit: Moral Disapproval Is Not Sufficient Justification for Medical Exam Under ADA

This morning, a unanimous Sixth Circuit again reversed an employer’s summary judgment decision in an ADA case where an Emergency Medical Technician lost her job for refusing to obtain mental health counseling.  Kroll v. White Lake Ambulance Authority, No. 13-1774 (6^th Cir. 8-19-14).  In 2012, the same three judges of the Court had (on a divided basis) reversed the employer’s summary judgment on the grounds that requesting the plaintiff to submit to mental health counseling constituted a request for a medical examination – even if the employer did not seek to know the results or subject of the counseling.  On remand, the trial court again granted the employer summary judgment on the grounds that the employer had received a number complaints about the plaintiff’s erratic and/or dangerous behavior which compromised her ability to safely and competently perform her job duties and which reflected that she posed a direct threat to herself and others.  However, on appeal, the Court of Appeals focused only on the two incidents which the supervisor remembered in his deposition to knowing or believing at the time he required the plaintiff to submit to counseling.  Moreover, the Court found that a jury could believe that the counseling was requested largely because the supervisor morally disapproved of the plaintiff’s extracurricular activities with a married co-worker and men she met at a local bar. In addition, the  Court found that most of the co-worker’s concerns related to off-duty conduct and were not relevant to whether the plaintiff could safely or competently perform her job. 

According to the Court’s opinion, several of the plaintiff’s co-workers testified to her erratic behavior and that they had complained to management about it.  Among other things, she would cry, argue with her married boyfriend on her cell phone, send text messages while driving an ambulance in violation of the employer’s policy and refused to assist a co-worker (who she suspected of also having an affair with the plaintiff’s married boyfriend) administer oxygen to a patient. The plaintiff denied violating the employer’s policy on using cell phones or texting while driving.   After the last incident, the plaintiff’s supervisor conditioned her continued employment on attending counseling with the professional of her choice.  He admitted in his deposition that he did not really question her patient care.  He also admitted that he was compelling counseling because her life was a mess and he thought that he could help her. “[H]is primary concerns regarding Kroll related to her personal life and her sexual relationships.” In addition, the plaintiff

confirmed that Binns told her she would need to attend counseling because of her personal behavior. She testified that, during the meeting following her argument with Osborn, Binns “said I was picking up men from the bar and I was going to end up raped if I just picked up random men from the bar.”  . . . Kroll recalls that Binns explicitly told her that she “needed counseling because of [her] immoral personal behavior.” . . . Although Kroll agreed that she had some emotional problems and that she might have benefitted from some counseling, she refused treatment because she could not afford to pay for it.

The ADA prohibits requiring employees to submit to medical examinations or inquiries unless the employer can prove that they are job related and consistent with business necessity.  This burden can be met where: “(1) the employee requests an accommodation; (2) the employee’s ability to perform the essential functions of the job is impaired; or (3) the employee poses a direct threat to himself or others.”   The Court concluded that the employer could not prove that there were questions about the plaintiff’s ability to perform her essential job functions based on two isolated incidents.  Granted, “a genuine reason may arise when an employee’s “aberrant behavior” raises the concern that an employee’s mental or emotional instability could undermine her ability to complete her job functions effectively in the employer’s work environment.”   Nonetheless, most of the evidence of such behavior cited by the employer had been forgotten (if it had ever been known by her supervisor by the time of his deposition) and, more importantly, related to off-duty behavior:  

Kroll’s behavior is relevant to the assessment of whether she was capable of performing her job only to the extent that it interfered with her ability to administer basic medical care and safely transport patients to the hospital. A reasonable jury could find that Kroll’s emotional outbursts outside of work hours and not in the presence of patients did not impair her ability to perform essential job functions.

Therefore, a jury could reasonably conclude that there was no valid reason for questioning the plaintiff’s professional competence.

Safely transporting patients to the hospital and providing basic medical care were among the essential duties of Kroll’s position as an EMT. Binns knew that an EMT who becomes distracted while driving an ambulance, either because she is using her cell phone or because she is focused on personal concerns, is at a higher risk of causing a traffic accident.  . . . Therefore, had Binns been aware of a pattern of behavior that showed Kroll’s emotional or psychological problems were interfering with her ability to drive an ambulance safely, he might have been justified in ordering a medical examination. In the instant case, however, Binns knew only that Kroll had broken a safety rule once and provided suboptimal care to a patient once. Kroll’s isolated moments of unprofessional conduct might reasonably have prompted Binns to begin internal disciplinary procedures or to provide Kroll with additional training, but they could not support the conclusion that Kroll was experiencing an emotional or psychological problem that interfered with her ability to perform her job functions.

The Court rejected the direct threat defense on a similar basis:

As an EMT employed by an ambulance service, Kroll was undoubtedly employed in a position of public safety. A reasonable jury could find that the emotional behavior observed by Kroll’s coworkers, particularly any distractions while Kroll was driving, could endanger not only herself and her coworkers but also the members of the public she was called upon to aid. Thus, if Binns had been aware of a pattern of conduct in which Kroll succumbed to emotional outbursts while she was driving or providing direct medical care, he might have been justified in concluding that she posed a direct threat to safety. However, as discussed above, Binns knew of only two isolated incidents when Kroll ever behaved in a way that could endanger another person. A reasonable jury could find that Binns could not reasonably have concluded from these missteps that Kroll presented “a significant risk to the health or safety of others.”

Moreover, the employer did not consult any medical information or professional in mandating mental health counseling. The EEOC regulations require an employer to make an individualized assessment of the employee’s threat based on the” employee’s abilities and job functions and “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r).  While the Court was unwilling to precisely define what steps an employer must take, “an employer must do more than follow its own lay intuition regarding the threat posed by an employee’s potential medical condition.”  In this case, there was no evidence that the supervisor “made any kind of medical judgment at all.” 

Therefore, while there is evidence in the record to support a jury verdict in the employer’s favor, there was also enough evidence for a jury to rule in favor of the plaintiff.  Accordingly, summary judgment was inappropriate.

 

For those of you wondering about why there was no Title VII claim, there was evidence that the supervisor had requested male employees exhibiting similar behavior to also submit to mental health counseling.

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. 

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.

Divided Sixth Circuit: Referral to Mental Health Counseling was “Medical Examination” Under ADA

Yesterday, a divided panel of the federal Sixth Circuit Court of Appeals found that an employer’s mandatory referral of an apparently depressed and possibly suicidal employee to mental health counseling constituted a medical examination, which under the ADA can only be required when job related and consistent with business necessity. Kroll v. White Lake Ambulance Authority, No. 10-2348 (6th Cir. 8-22-12). In that case, the plaintiff was having an affair with a married co-worker, appeared distressed to her co-workers and may have expressed suicidal ideation. On at least one occasion, she engaged in a loud verbal altercation over her cell phone while driving a patient in the ambulance in an emergency situation (i.e., with sirens and lights). She quit after she was informed that she must attend mental health counseling as a condition of continued employment and then filed suit. The trial court dismissed on summary judgment on the grounds that counseling is not necessarily an examination. The majority of the Court found that the counseling would have necessarily involved a potential psychological diagnosis, thus rendering the counseling a “medical examination” even if the employer was not interested or inquiring into any potential diagnosis. Accordingly, the case was remanded for the trial court to determine whether the employer’s request for the examination was job –related and consistent with business necessity.

According to the Court’s opinion, there was some dispute about the nature of the counseling the plaintiff was required to receive and who would pay for it. The employer did not have a firm opinion about what was necessary, but felt that she would benefit from some sort of mental health counseling and had concerns about her ability to safely perform her job duties.

The employer attempted to argue that the plaintiff lacked standing to bring a suit under the ADA because she denied being disabled and never underwent any challenged “medical examination.” However, the court unanimously found that the plaintiff had standing to challenge the medical examination because she lost her job as a result of her refusal to submit.

The trial court found that counseling alone did not constitute a medical examination. The Court examined the EEOC’s 1995 enforcement guidelines about what constitutes a medical examination. “The EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The EEOC’s guidelines provided seven factors to consider as to whether an interaction constituted a covered medical examination. “ The guidance further explains that “psychological tests that are designed to identify a mental disorder or impairment” are “medical examinations,” while “psychological tests that measure personality traits such as honesty, preferences, and habits” are not.” . . . . [T]o determine whether something constitutes a “medical examination” one must consider whether it is likely to elicit information about a disability, providing a basis for discriminatory treatment.” Importantly, “an employer’s intent is not dispositive as to whether something qualifies as a “medical examination” under the ADA.” For instance, the Seventh Circuit previously found that an administration of the MMPI (which can diagnose psychological disorders) constituted a medical examination even though the employer only wanted to know about personality traits.

Accepting the allegation that the employer wanted the plaintiff to submit to psychological counseling, the Court found it ambiguous as to whether this was a passive, problem solving process or “the science of psychology implicating the diagnosis and treatment of mental illness.” Regardless, the Court found that a psychologist would act in some sort of diagnostic role in order to assist the plaintiff with her problems.

This brings us to factor three, arguably the most critical in this analysis: whether the psychological counseling” was designed to reveal a mental-health impairment. As previously suggested, the answer in the abstract is somewhat ambiguous. The definitions suggest that sometimes “psychological counseling” is used for the diagnosis and treatment of mental illness; the ADA recognizes as much in stating that “psychologists” are among the “variety of health professionals [that] may provide documentation regarding psychiatric disabilities” for ADA purposes. EEOC, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (1997), http://www.eeoc.gov/policy/docs/psych.html. However, psychological counseling need not always be targeted to mental-health diagnosis—sometimes patients seek psychological counseling and specifically request that no mental-health diagnosis be made. In this instance, based on the evidence presented by [the plaintiff], a reasonable jury could conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect. [The employer] does not dispute that it was concerned about [the plaintiff] suffering from depression, to the point of suicidal ideation, and [her supervisor] stated in his deposition that he instructed [her] to go to the counseling “to discuss issues related to her mental health.” . . . . These facts are sufficient for a reasonable jury to conclude that [the employer] intended for [the plaintiff] to attend counseling to explore her possible affliction with depression, or a similar mental-health impairment, so that she could receive the appropriate corresponding treatment. This uncovering of mental-health defects at an employer’s direction is the precise harm that § 12112(d)(4)(A) is designed to prevent absent a demonstrated job-related business necessity.

Based on these three factors alone, the Court concluded that the mandatory counseling constituted a “required medical examination” under the ADA. “We reach this conclusion, because the ‘psychological counseling’ in question was likely to probe and explore whether [the plaintiff] suffered from a mental-health disability, regardless of whether this was [the employer’s] intention.”

The dissent argued that the plaintiff could have picked her own counselor and avoided any medical inquiries, thus removing the “required” from “medical examinations” covered by the ADA.

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.