When can you send an employee for a medical exam? In EEOC v. McLeod Health, Inc., the Fourth Circuit recently provided some guidance and allowed a plaintiff’s claim for an illegal medical exam to proceed to the jury despite evidence of safety and job performance issues.
Cecilia Whitten was the editor of McLeod Health’s internal employee newsletter for 28 years. Whitten developed content for the newsletter by interviewing other employees and writing about company events. To do so she often traveled among McLeod’s various campuses spread across 100 miles. Although Whitten had a disability that made walking difficult, for many years she satisfactorily performed her job duties.
Over time, Whitten began falling more frequently. She fell three times in a four-month span, but only one fall was during work and she wasn’t significantly hurt. Additionally, during this time her manager expressed concerns about her work performance. After her third fall, based on the job description, the manager’s report, and the company’s records of Whitten’s medical issues, the company required Whitten to undergo a fitness-for-duty medical exam. Of note, McLeod was not “particularly concerned with Whitten’s performance on the job.” Instead, it ordered the exam to ensure she could “safely get to different locations to do her stories.”
After the exam, the occupational therapist recommended a number of things, including that Whitten be restricted to traveling no more than 10 miles from her main office. In turn, Whitten requested accommodations in line with the therapist’s recommendations. McLeod eventually terminated Whitten “because her proposed accommodations would prevent her from traveling to the company’s various campuses to collect stories and take photographs, thereby nullifying the purpose of her position.” After Whitten filed an EEOC charge, the EEOC filed a lawsuit on Whitten’s behalf, alleging that McLeod terminated Whitten because of her disability and violated the ADA by requiring Whitten to undergo a medical exam. The district court granted summary judgment on both claims and the EEOC appealed.
Sending an Employee for a Medical Exam
The ADA does not require an employer to collect medical information on an employee but it provides that an employer can collect it under certain circumstances. For example, an employer can require a candidate to submit to a medical exam after an offer of employment is extended but before the employee starts work. With a current employee, an employer can require a medical examination only if it is job-related and consistent with business necessity. According to the EEOC’s enforcement guidelines, to require a current employee to undergo a medical exam, an employer must reasonably believe, based on objective evidence, that
the employee’s ability to perform an essential job function is impaired by a medical condition, or
the employee can perform all the essential functions of the job but doing so will pose a direct threat to his safety or the safety of others due to the medical condition.
Back to the McLeod Health Case
According to the Fourth Circuit, the threshold question was whether navigating to and within McLeod’s campuses was an essential function of Whitten’s job. The court found that the EEOC provided enough evidence that navigating to and within the campuses was not an essential job function so that it is a question for the jury. In particular, Whitten’s written job description did not require navigating the campuses, and Whitten was able to conduct interviews and collect content over the phone. Given the court’s finding that whether navigating was an essential function of Whitten’s job, the court reversed the granting of summary judgment on both claims.
This decision raises several issues that employers in the Fourth Circuit and elsewhere should keep in mind before requiring a medical exam.
Be cautious when requesting a medical exam. Do not request one unless the employee cannot perform an essential job function. If the employee is just doing a poor job, you don’t need a medical exam.
Make sure you have objective evidence that an employee’s medical condition is what is preventing him or her from performing an essential job function. Although testimony is evidence, well-documented examples are better.
Double check your essential job functions. A tangential job function or a job function that is an added bonus will not suffice. Employers should begin by looking at the written job description to determine if the function is even mentioned. In determining whether a function is essential, it is important to examine the amount of time the employee spends on performing that function and the consequences if that function is not performed.
If the employee can perform the essential functions, are you worried that he or she is posing a direct threat to his or her own safety or the safety of others? If not, don’t get the medical exam. A direct threat needs to be a real concern—not speculative. If it could but is unlikely to happen, how much of a threat is it? If it could maybe happen and someone could be seriously hurt, that might qualify.
Employers are still able to require employees to undergo medical examinations, but this case serves as a cautionary tale. Due to the strict requirements the Fourth Circuit placed on McLeod, employers may be more inclined to wait to address issues until an accident actually happens at work (i.e., Whitten falls repeatedly at work) before requesting a medical exam.