Sixth Circuit: Employer Has No ADA Liability for Choosing Between Dueling Physician Opinions in Fitness-For-Duty Evaluations as Long as Selected Opinion is Objectively Reasonable

Last month, a divided panel of the Sixth Circuit Court of Appeals affirmed summary judgement under the ADA for an employer which had relied on two medical opinions that found the plaintiff to be a potential direct threat and unfit for duty and rejected critical medical opinions by the disability insurance carrier’s physicians and the employee’s selected physician who found the plaintiff to be fit for duty and ineligible for disability insurance. Michael v. City of Troy Police Department, No. 14-2478 (6^th Cir. 12-14-15).  The dissent would have left it to the jury to decide whether the opinions of the employer’s physicians were “objectively reasonable.”  However, the Court’s majority concluded that the employer was not required to divine which physician was correct or to wait until disaster struck; it was absolved of ADA liability as long as the opinion it selected was objectively reasonable.

According to the Court’s opinion, the plaintiff had several surgeries for a brain tumor and returned to work.  After his second surgery, he began to act strangely (i.e., overreacting, secretly recording his boss and his wife, suing his boss and trying to press criminal charges against his now ex-wife, etc.), but did not threaten himself or others with physical harm.  Nonetheless, following his third surgery, he was referred for a fitness for duty, psychological examination where a neurologist found him unfit to return to work because he “may be a threat to himself and others.”  The plaintiff sought a second opinion from another neuropsychiatrist, who found him fit to return to work.  A third physician confirmed the first evaluation in subsequent, but briefer, evaluation.  (Similarly, a fourth evaluation which the plaintiff secretly initiated also found him unfit for duty).  However, when he applied for disability pay, the insurance company’s evaluating physicians were sharply critical of the prior medical opinions and denied him compensation on the grounds that he was fit for duty and able to return to work without restrictions.  Based in part on his erratic behavior, the City refused to reinstate him and relied on the evaluations of the two physicians which had found him a possible danger to himself and others. He filed a lawsuit for disability discrimination under the ADA and the court granted summary judgment for the employer.

The Court agreed that the plaintiff could not carry his burden of proving that he was qualified to perform the essential functions of his job because the employer had reasonable medical evidence that he posed a direct threat. 

An employer’s determination that a person cannot safely perform his job functions is objectively reasonable when the employer relies upon a medical opinion that is itself objectively reasonable.  . . . A medical opinion may conflict with other medical opinions and yet be objectively reasonable.

The Court found that the employer had both reasonable medical evidence and testimonial evidence about the plaintiff’s odd behavior to justify keeping him off work.  The first medical opinion was not a cursory report, but followed a seven-hour evaluation, nine hours writing an eleven page report.  The second opinion relied on a 90 minute evaluation and a review of the prior report and medical records.  In contrast, the disability insurance physicians only reviewed records and the reports instead of independently evaluating the plaintiff.

The Court’s majority rejected the relevance of the conflicting medical evidence: 

Only one of the doctors discussed the specific job functions of the City’s patrol officers, and none ventured specifically to say that Michael could safely engage in high-speed driving or make snap decisions regarding whether to use lethal force. Those omissions are conspicuous.

But there is a larger problem with Michael’s argument. Reasonable doctors of course can disagree—as they disagree here—as to whether a particular employee can safely perform the functions of his job. That is why the law requires only that the employer rely on an “objectively reasonable” opinion, rather than an opinion that is correct.  . . . Indeed, in many cases, the question whether one doctor is right that an employee can safely perform his job functions, or another doctor is right that the employee cannot, will be unknowable—unless the employer runs the very risk that the law seeks to prevent.  Here, the City was not required to invite a section 1983 claim later in order to an ADA claim now. Right or wrong, the opinions upon which the City relied were objectively reasonable; and that means the City is not liable.

Importantly, the City also had its own reason for believing that the plaintiff might be a direct threat based on his erratic behavior showing poor judgment.  These issues were not addressed by the medical opinions which found him to be fit for duty.

In another opinion rendered the same week, a different panel likewise affirmed summary judgment for an employer which had referred the plaintiff teacher to be evaluated for fitness for duty when she was routinely tardy, seemed to be falsifying grades, could not control the students in her classroom (which was constantly in disarray), failed to implement a mandatory reading program, and regularly required other employees to assist her assert control over unruly and delinquent students.  Belasco v. Warrensville Heights City School Distr.. No. 15- 3131 (6^th Cir. 12-11-15).   She testified that she was afraid that the students would knock her down because of her balance impairment.   The physicians found her also be short of breath.   When the plaintiff requested a second opinion and selected her own physician, the first opinion was confirmed.    Neither physician believed that she could appropriately respond to emergencies. She was ultimately terminated after a hearing. The Court found that she had failed to provide any medical support that her belatedly requested accommodation – a walker – would enable her to perform the essential functions of her job.  

 

While the plaintiff questioned whether the evaluations were “reasonably calculated to measure the essential functions of her job,” she failed   

to offer any evidence that the validity of the fitness-for-duty test depends on whether each element qualitatively and quantitatively corresponds exactly to narrowly defined aspects of the job in question. One might wonder, for example, how a teacher’s ability to respond in emergencies could be tested if not by using other tasks as proxies for an emergency. Moreover, by arguing that “many of the tasks required by the tests” were unrelated to essential functions, Belasco implicitly concedes that at least some aspects of the fitness-for-duty tests were related to essential functions. See R. at 17, Appellant Br. 13–14. Belasco does not explain why her failure to pass the relevant aspects of the fitness-for-duty tests cannot independently support the examiners’ conclusions that she was unable to perform essential functions of her job— namely, supervising students, ensuring their safety, and responding in emergencies. Her critique of the exams does not rebut these critical pieces of information.

In addition, the Court found that in light of abundance of evidence that she was unqualified, she needed to do more than poke a few holes in the evaluation.  Instead, she was required to prove that she was qualified for her teaching job.   

Further, the Court found that she also failed to identify a reasonable accommodation that would have enabled her to perform her job duties.  The request for a walker was not supported by medical evidence.  Her request for a teaching aide was inappropriate because the law does not require an employer to hire a second employee to perform the essential job functions for another employee.  In any event, the union refused to consent to the hiring of a part-time aide, even as an accommodation to a teacher with decades of experience.   The Court distinguished the situation when the employer replaced her with two substitute teachers because the extra teacher was required to help the students to catch up after spending a semester with the plaintiff’s inadequate performance and had not been hired – as plaintiff suggested – to help control the unruly students.

 

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.

EEOC Obtains $90K Consent Judgment in Federal Court In Columbus Over ADA Violations When Employer Required Employees to be 100% Fit.

Last week, the EEOC announced that “AVI Foodsystems, Inc. (AVI) will pay more than $90,000 and offer jobs to discrimination victims to settle a class disability discrimination suit brought” by the EEOC in federal court in Columbus, Ohio. “The EEOC charged in its suit (Case no. 2:09-cv-00656-JDH-MRA . . . . that AVI violated federal law by failing to allow employees with disabilities to return to work without a full-duty, no-restriction doctor’s release. The EEOC asserted that this policy violated the Americans With Disabilities Act (ADA). The agency said disabled employees who had been on leave and are able to return to work with some physical restrictions, but are still able to perform their jobs, should be allowed to do so. The policy adversely affected more than 80 AVI employees in several states, including Ohio, New York, Pennsylvania, Michigan, Illinois, Kentucky, and West Virginia.”

According to the EEOC, “[t]he consent decree settling the suit provides that AVI will offer jobs to discrimination victims named in the decree, make payments to individuals who are not provided jobs, comply with the ADA, and train managers on the provisions of the ADA. According to company information, Warren, Ohio-based AVI, the largest independently owned and operated food service in the United States, maintains vending and dining services in commercial locations such as factories, universities, and health-care facilities.”

Insomniacs can read the full EEOC press release at http://

New FMLA Regulations Change Return-To-Work Certifications and Clarify Rules on Delaying FMLA Leave Pending Certifications.

As mentioned in the summaries from the last two weeks, the DOL issued new FMLA regulations in November which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

36. §825.311: Intent to return to work. Although this rule was renumbered, there were no substantive changes from the current regulation at §825.309.

37. §825.312: Fitness for duty Certification. The new rule permits an employer to require a fitness-for-duty certification upon a return to work which certifies that the employee is able to resume work and, if the employer provided a list of the essential job functions to the employee and notified the employee of the requirement in the designation notice, addresses the employee’s ability to perform the essential functions of the job. The employer is also permitted to clarify the certification (as with the prior certification), but may not delay reinstatement during the clarification process. The “simple statement” provision has been deleted, as had the provision requiring an employee to provide a certification at his/her own expense if s/he could not return to work because of a continuation, recurrence or onset of a serious health condition.

Intermittent Absences/Reduced Schedule. In general, employers are not entitled to fitness-for-duty certifications for each such absence or reduced leave schedule. However, when “reasonable safety concerns exist” and the employer so notified the employee in the designation notice, an employer may require such certification no more often than every 30 days. “Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others” based on the nature, magnitude and likelihood of potential harm that could occur.

ADA. As with the current regulations, the employer may not violate the ADA in the certification process. However, the new rule makes clear that “the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA” when the ADA is applicable.

38. §825.313 Failure to provide certification. The new rule clarifies that an employer may deny FMLA leave until the employee provides the required certification or recertification. Because the employee typically has 15 days after request to provide the certification or recertification, the period after the 15 days would be unprotected leave. Job restoration may also be denied if the employee fails to provide a fitness-for-duty certification as directed in the prior designation notice.

There are a few additional changes in other regulations (to conform existing regulations to issues already covered in this blog), but they are unlikely to be applicable on a daily basis in most workplaces, so my work here is done summarizing the new FMLA regulations. Of course, readers could always call me for additional details. In any event, insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

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.

New FMLA Regulations Significantly Modify Employers’ Notice Requirements.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

26. §825.300 Employer Notice Requirements. The new regulations consolidate in one regulation all of the significant notice requirements imposed on employers and make a a number of other significant changes.

General Notice. In addition to providing the FMLA general notices in a language understood by a significant number of the non-English-speaking employers, the employer is also now required to provide notices that can be understood by sensory-impaired individuals. The fine for non-compliance has been raised to $110.00. Electronic posting of the FMLA general notice is sufficient to comply with the regulation “as long as it otherwise meets the requirements” of the regulation. “For the posting requirement to be met, however, all employees and applicants for employment must have access to the information. Thus, for example, if an employer has some employees who do not have employer provided computer access or who are not otherwise able to access the information electronically, the employer must post on its premises where it can be readily seen a paper copy of the information contained in the general notice. . . . [Nonetheless], electronic posting does not excuse the employer from the statutory requirement to post in a location viewable by applicants for employment. . . . , if the employer posts such information on an intranet that is not accessible to applicants, additional posting would be necessary in a conspicuous place where notices for applicants for employment are customarily posted.”

Employee Handbooks. The general notice information must be included in the employer’s employee handbook, if any, and if there is no employee handbook, the information must be given to each employee when the employee is hired. “In either case,” the information may be distributed electronically as long as the regulation is complied with (i.e., “that the information is accessible to all employees of the employer, that it is made available to employees not literate in English (if required), and that the information provided includes, at a minimum, all of the information contained in the prototype general notice).” The DOL ultimately decided not to require the information to be distributed annually as previously proposed.

Eligibility Notice. When an employee requests FMLA leave or when the employer learns that an employee’s leave may be for an FMLA reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days absent extenuating circumstances. (This notice is limited to eligibility and does not address whether the employee has qualified for FMLA or has already exhausted FMLA leave). The employee’s eligibility must be determined at the beginning of the first instance of leave for each FMLA-qualifying reason. “All FMLA absences for the same qualifying reason are considered as a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period.” Conversely, if the employee needs FMLA leave for a different reason within the twelve months, but the employee’s eligibility status has changed, the employer must notify the employee of the changed status within five business days.” If an employee is not eligible for FMLA leave, the employer’s notice to the employee need only state at least one reason why the employee is not eligible.” In addition, “[n]otification of eligibility may be oral or in writing” and “employers may use” a prototype notice provided in the regulations. This notice, of course, must be translated into a language or format the employee understands. Notably, the DOL has deleted the current requirement that the employer provide such a notice with each request for FMLA leave or every six months because “in many cases, is much less frequent than either with ach FMLA-protected absence or every six months.”

Notice of Obligations. When the employer provides the employee with the eligibility notice, the employer must also “provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations” (in a language or format understood by the employee). “If leave has already begun, the notice should be mailed to the employee’s address of record.” When describing the conditions of substituting paid leave, the notice must also specify the employee’s entitlement to take unpaid FMLA leave if the conditions for paid leave are not met. “[A]n employer may meet the requirements of providing information about the conditions related to the substitution of paid leave by reference to existing, employee accessible copies of such policies.” This notice no longer need include any requirement for the employee to present a fitness-for-duty certification following the leave. The notice “may be accompanied by any required certification form,” including the DOL’s prototype notice. If the information changes, the employer must within five days after the next request for leave provide written notice describing and referencing the changed information. Again, this notice may be distributed electronically as previously discussed.

Designation Notice. Once an employer receives enough information (from a medical certification form, etc.) to determine whether a leave qualifies under the FMLA, it “must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. Only one notice of designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave . . . will be a continuous block of leave or intermittent or reduced schedule leave.” When it designates the leave as qualifying under the FMLA, the employer must also notify the employee if paid leave is to substituted for unpaid FMLA leave or that paid leave taken under an existing leave plan be counted as FMLA leave.” If the designation information changes (i.e., the employee exhausts the FMLA entitlement), the employer must “provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change.” The DOL has eliminated the current concept of “provisional designation” as confusing to employees.

The employer is required to inform the employee “of the amount of leave counted against the employee’s FMLA leave entitlement. If the amount of leave needed is known at the time” of the Designation Notice, “the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice.” If that is not possible “(such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee’s FMLA leave entitlement upon the request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period. The notice of the amount of leave counted against the employee’s FMLA entitlement may be oral or in writing. If such notice is oral, it shall be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). Such written notice may be in any form, including a notation on the employee’s pay stub.”

Fitness for Duty. If the employer will be requiring the employee to present a fitness-for-duty certificate from the employee’s doctor upon returning to work, the employer must notify the employee of the requirement in the Designation Notice (unless the requirement is already contained in the employee handbook or other written policies). If the fitness-for-duty certificate requires the physician to address whether the employee can perform the essential duties of the employee’s position, the employer must so indicate in the Designation Notice and must also include a list of the essential functions of the employee’s position. The DOL has also supplied a prototype Designation Notice.

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Significantly Change Employee’s Notice Requirements; Calling in Sick and Ignoring Employer’s Policies No Longer Suffices. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

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.