Employers have right to require medical exam

Published 05/15/01

Generally, an employer’s requirement that a worker submit to an independent medical examination ("IME") before coming back to work after medical leave is not enough to prove the employer regarded the worker as disabled, thereby subjecting itself for a discrimination claim under the Americans with Disabilities Act ("ADA").

To make a claim for employment discrimination under the ADA, the worker must demonstrate that he is a qualified individual with a disability within the meaning of the ADA, and that he suffered an adverse employment decision as a result of discrimination. Being disabled under the ADA includes being regarded as a having a physical or mental impairment that substantially limits one or more major life activities of such individual. Therefore, the ADA not only protects workers who are in fact disabled, but also protects workers who are regarded by their employer to be disabled.

The United States Court of Appeals for the Third Circuit in the case of Tice vs. CATA affirmed a Pennsylvania federal court’s decision finding that the ADA allows employers to require an IME as long as it is job related and there is a business necessity for doing so. In that case Tice alleged CATA’s requirement for his IME before allowing him to return to work as a bus driver from his back injury violated the ADA. Tice, among other things, alleged that CATA regarded his back injury as a disability as proven by CATA’s IME requirement. Tice alleged the delay in his return to work while awaiting the IME appointment caused him damages.

The Court noted that the EEOC regulations clarify the ADA by explaining that an employer may require a medical examination and/or inquiry of a worker that is job related and is consistent with business necessity. An examination that is job related and consistent with a business necessity must be limited to an evaluation of the worker’s condition only to the extent necessary to establish the worker’s fitness for the work at issue. Therefore, the Court noted that the request for an IME that is job related and consistent with a business necessity will not, in absence of other evidence, sufficiently demonstrate that the worker is substantially limited in a major life activity. Such a request for an appropriated tailored examination only establishes that the employer harbors doubts, not certainties, with respect to the worker’s ability to perform a particular job. Doubts alone do not demonstrate that the worker was held in any particular regard. Furthermore, the inability to perform a particular job, rather than a broad class of jobs, is not a disability in and of itself within the meaning of the ADA.

While this case is from the Third Circuit and not the First Circuit, which hears appeals from the New Hampshire federal court, it is helpful for both workers and employers to understand employers generally have the right to require an IME for a worker who is out for physical or mental impairment as condition of their return, so long as the employer can prove that the medical examination was job related and was a business necessity. This can be a complex issue and it would be prudent to contact its employment counsel to work through that analysis.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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