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When Employer’s Go Too Far – Disability-Related Inquiries And Medical Examinations Under The Americans With Disabilities Act

ADA Image.jpgThe Americans with Disabilities Act (“ADA”) limits an employer’s ability to make disability-related inquiries or require medical examinations. During employment, employers “shall 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 and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Any employee can challenge a disability-related inquiry or medical examination that is not “job-related and consistent with business necessity.”

The Equal Employment Opportunity Commission (“EEOC”) has defined a “disability-related inquiry” as “a question (or series of questions) that is likely to elicit information about a disability.” This may include asking an employee about the severity of a disability, asking an employee to provide medical documentation regarding a disability, asking about prior workers’ compensation history, or asking about prescription medications, for example.

A “medical examination” is a “procedure or test that seeks information about an individual’s physical or mental impairments or health.” A number of factors should be considered when assessing whether a medical examination is improper under the ADA. These include whether the test is administered and/or interpreted by a health care professional, whether the test is designed to reveal an impairment or physical or mental health, whether the text is normally given in a medical setting, and whether medical equipment is used, for example.

In general, 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 6th Circuit has held that this entails “dual requirements that there be evidence sufficient for a reasonable person to doubt whether an employee is capable of performing the job, and that any examination be limited to determining an employee’s ability to perform essential job functions.”

Individuals who have suffered from workplace injuries can be particularly vulnerable to these types of inquiries or examinations. Pursuant to the EEOC, employers are permitted to ask questions or require examinations that are limited to the specific workplace injury and its impact on the employee only when necessary for the employer to determine the employee’s eligibility for workers’ compensation benefits.

Nilges Draher recently defeated an employer’s motion for summary judgment on this very issue. In Angel v. Bilfinger Weston, Inc. an Ohio federal court found there to be a genuine issue of material fact as to whether an employer was allowed to require an employee to submit to a medical examination, after the employer had previously required the employee to attend various doctors’ appointments after a workplace injury. This is an unprecedented decision in the 6th Circuit.

If you have questions regarding disability-related inquiries or medical examinations, please call us to discuss whether your employer has gone too far.

The Angel v. Bilfinger decison can be accessed by clicking on this link: Angel Decision.pdf

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