International Society of Primerus Law Firms

Be Careful What You Ask For: How To Make Sure Your Return-to-Work Policies Dont Violate the ADA

By: Bianca Watts and Anthony R. Eaton, Esq.

Wilke, Fleury, Hoffelt, Gould & Birney, LLP

Sacramento, CA

As the costs of doing business increase each year, many employers are looking for effective ways to ensure productivity among their employees, promote workplace safety and prevent chronic absenteeism. Many employers, for example, require that employees returning from a medical leave of absence undergo a return-to-work medical exam to ensure that the employee can safely perform his or her job functions.

Generally, return-to-work medical exams are legal. Employers can ask questions about the medical issues surrounding an employees disability or leave. However, to comply with the Americans with Disabilities Act (ADA) and the Rehabilitation Act, the exams and disability-related inquiries must be limited in scope and narrowly tailored to evaluate whether the employee can perform the essential functions of the job. The employer cannot use the employees medical leave as an excuse to make broad, intrusive disability-related inquiries or subject the employee to medical exams that have nothing to do with why the employee went out on medical leave.

An Example of What NOT To Do

In Scott v. Napolitano, an employee suffered a number of physical injuries and psychological disorders that required him to take medical leave. Over a period of six years the employee suffered sinusitis, an injury to his right arm and shoulder, and was diagnosed with depression, anxiety and work-related stress. The employees supervisor became concerned that these health issues would impact his ability to perform the full range of his job duties and be trusted with his government issued side-arm. The supervisor recommended that the employee complete a fitness for duty examination.

Prior to the scheduled exam, the employee was asked to fill out a medical questionnaire by the examining physician. Many of the questions were very broad and not limited to a specific time-frame. For example, the employee was asked if he had ever been treated for a mental condition and to list all medications he was currently taking. In addition to the questionnaire, the employee was required to sign a release that permitted any doctor, hospital or clinic to release all of the employees medical information to his employer.

The employee refused to answer many of the questions in the medical questionnaire because he believed they violated his legal rights. Further, the employee crossed out the language of the release and wrote that he would only authorize the release of the results of the upcoming fitness for duty exam, not any other personal medical records. The employee was warned that he had 14 days to answer all of the questions and sign the full release. When the employee did not comply, he was suspended for insubordination and was advised that he must answer the questions and sign the release. The employee again refused and was terminated. The employee sued, alleging the employers practices violated the ADA and the Rehabilitation Act.

The court agreed with the employee and found that the questions in the medical questionnaire were impermissibly overbroad disability-related questions. The court held that medical exams and inquiries cannot be required unless those exams and/or inquiries are shown to be job-related and consistent with business necessity. A business necessity may include ensuring workplace safety or preventing excessive absences. Further, once a business necessity is shown, the exam or inquiry cannot be any broader or more intrusive than needed for the employer to determine if the employee is currently able to perform the essential functions of his or her job. For the most part, exams or inquiries related to the specific medical condition for which the employee took leave will be all that is warranted and should be limited to a specific time-frame.

Lessons for You

Return-to-work medical exams or disability-related inquiries are permissible as long as you comply with the ADA and Rehabilitation Act. Remember that these exams and inquiries must be driven by a business necessity, such as ensuring workplace safety. Also, the exams or inquiries must be limited to determining whether the employee can currently perform his or her essential job duties. Exams or inquiries not limited in time or tailored to the specific medical condition for which the employee took medical leave may violate the ADA and Rehabilitation Act and subject you to liability.

For more information on Wilke, Fleury, Hoffelt, Gould & Birney, LLP, visit the International Society of Primerus Law Firms or

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