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The Americans With Disabilities Act, commonly referred to as the ADA, generally prohibits employers from using qualification standards or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities. As a practical matter, however, employers often find it necessary to test job candidates for medical conditions that might impair one’s ability to safely perform the duties of a particular position, both out of legitimate concern for the well-being of its employees and to limit potential legal exposure. Although such screening may create some tension with the ADA, it is certainly not per se unlawful; but it does need to be conducted in an ADA-compliant manner. Compliance has become especially critical of late since the watchful eye of the U.S. Equal Employment Opportunity Commission (“EEOC”) has begun to home in on medical screening.

For example, in one recent case, the EEOC challenged an employer’s policy requiring that forklift operators submit to a medical examination every three years. Under the policy, employees found to suffer from certain types of medical conditions were automatically disqualified from the forklift operator job and, if possible, placed elsewhere. EEOC v. Murray, Inc., 175 F. Supp. 2d 440 (M.D. Tenn. 2001). Suit was brought by the EEOC on behalf of an insulin-dependent diabetic who, although not “an individual with a disability” within the meaning of the ADA, was adversely affected by the policy when he was removed from the position of forklift operator after disclosing that he was an insulin-dependent diabetic. The employee was later terminated.

While the court did not allow the EEOC to press an individual claim for relief on behalf of this particular employee, since he did not suffer from an ADA-covered disability, the screening policy itself was subject to scrutiny on a “pattern or practice” theory. Adopting the “pattern or practice” analysis developed under Title VII of the Civil Rights Act of 1964, the district court concluded that for liability purposes at least the EEOC was not required to prove that any particular adversely affected applicant or employee was within the protective sphere of the ADA; all that must be shown in the first instance is the existence of a policy or practice that singles out for disqualification individuals with certain medical conditions. The EEOC acknowledged of course that excluded victims with actual ADA-covered disabilities would need to ultimately be identified for remedial purposes.

In order to successfully defend its exclusionary policy the employer had the burden of proving that it’s qualification standard was job-related and consistent with business necessity. Because the policy at issue called for a blanket exclusion of all employees afflicted with certain impairments, including insulin-dependent diabetics, and thus “appear[ed], on its face, to be based on improper stereotypes and generalizations about individuals with the specified [disqualifying] medical conditions,” the employer faced the stiff burden of showing that “all individuals with the specified conditions necessarily will have the accompanying physical or mental limitations that prevent them from being able to perform the essential functions of the position.” Given the varying effects diabetes has on its victims, such proof is not likely to be readily available.

The lesson of this case is essentially the lesson of the ADA: employers may not make adverse decisions based on stereotypical assumptions associated with the individual’s disability rather than on the individual’s actual characteristics. As such, the ADA requires that protected individuals be evaluated based not on the nature of their disability but on their capability to perform the job in question, notwithstanding their disability, with or without reasonable accommodation. Thus, the ADA contemplates that some insulin-dependent diabetics may have a “disability” while others may not, compare Nawrot v. CPC Int’l, Inc., 277 F.3d 896, 904-05 (7th Cir. 2002) (diabetic was protected under the ADA) with Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724-25 (8th Cir. 2002) (diabetic did not have a disability), and of those who do suffer from an ADA-covered disability some may be able to operate a forklift while others may not. Only those falling in the latter category may be lawfully weeded out.

To be sure, medical screening of employees and applicants is, in appropriate circumstances, a legitimate workplace safety measure. By its terms, the ADA expressly allows employers to erect qualification standards designed to enforce a “requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” The EEOC took this concept one step further and adopted a regulation allowing employers to screen out candidates for employment who suffer from a disability of the sort that limits the individual in such a way as to not only create undue risk to others in the workplace but also poses job-related risks to the candidate himself or herself. Just this past term, the U.S. Supreme Court, in Chevron U.S.A., Inc. v. Echazabel, 122 S. Ct. 2045 (2002), upheld this “threat to self” regulation as a permissible exercise of the EEOC’s rulemaking authority.

The case was rooted in Chevron’s decision to deny Mr. Echazabel’s application for a refinery position based on the results of a pre-employment physical examination that showed liver abnormality or damage, the cause ultimately being identified as Hepatitis C. Chevron’s doctors advised the company that Mr. Ecahzabel’s condition would be aggravated by continued exposure to toxins in the refinery. In deference to this medical advice Chevron elected not to hire Mr. Echazabel for a refinery job. Mr. Echazabel argued that by excluding him ostensibly for his own protection, Chevron had engaged in the sort of workplace paternalism the ADA was designed to outlaw, and he challenged the EEOC’s authority to license such a practice via what he saw as a patronizing and overprotective regulation. Rejecting this argument, the Supreme Court explained that because the EEOC regulation in question requires that the direct threat defense be justified by a “reasonable medical judgment” and “an individualized assessment of the individual’s present ability to safely perform the essential functions of the job” it is not impermissibly paternalistic but to the contrary “disallows this sort of sham protection, through demands for a particularized enquiry into the harms the employee would probably face.” Again, as the U.S. Supreme Court reiterated in Echazabel, the watchword under the ADA is “individualized assessment.”

Another suit recently filed by the EEOC presents an interesting variation on the theme. In July of this year, the EEOC sued United Airlines on behalf of an insulin-dependent diabetic who was denied a position as a ramp worker. According to the lawsuit, Robert Zackery received a conditional offer of employment from United, but after a mandatory physical examination revealed his diabetic condition United told Mr. Zackery that in order for the job offer to stand he would need to sign an agreement requiring that he regularly monitor his blood sugar levels. The EEOC claims that although Mr. Zackery signed the agreement, United revoked the offer allegedly based on his medical condition.

Ramp workers are responsible for loading and unloading baggage and also must drive motorized vehicles on airport property, tasks the EEOC charges United had no basis for believing Mr. Zackery was unable to perform. In effect, the EEOC is making the same basic argument that met with success in the Murray, Inc. case, in particular that the ADA prohibits employers from basing hiring decisions on stereotypical assumptions about the limitations associated with a particular disability. Here, the EEOC avers that not all insulin-dependent diabetics are inherently incapable of performing the duties associated with the position of ramp worker, and therefore United cannot pronounce the job off limits to any and all individuals who suffer from such a condition as the EEOC accuses the airline of doing. The EEOC does not appear to be concerned about United’s seemingly reasonable requirement that Mr. Zackery agree to monitor his blood level on a regular basis as a condition of employment, no doubt recognizing that the failure of a ramp worker to do so could have severe consequences. Since Mr. Zackery signed the agreement, however, the EEOC believes his disqualification was predicated on his medical condition, a conclusion United will no doubt contest.

The same “job-related” and “business necessity” requirements that must be met in order to justify a pre-employment physical exam apply with equal force to medical examinations of existing employees. The ADA prohibits an employer from requiring an employee to undergo an examination for the purpose of determining either (i) whether the employee is an individual with a disability or (ii) the nature or severity of the employee’s known disability. An employer may, however, request that an employee impaired by an ADA-covered disability submit to a medical examination for purposes of ascertaining whether a reasonable accommodation may be required. An employer may also demand that an employee undergo an examination where health problems have had a substantial and injurious effect on his or her conduct or job performance. This is true even if such an examination may reveal whether the employee does in fact have a disability or the extent of his or her disability. To warrant an examination based on disruptive workplace behavior, the employee must have been acting in a manner that was more than just annoying or bothersome. Similarly, an examination would not be justified simply because the employee’s performance has become somewhat erratic, or he or she has been inefficient or off pace. Rather, the employer must have a genuine reason to doubt the employee’s ability to perform job-related functions before that employee may be required to submit to a medical examination.

The federal district court’s decision in Donofrio v. New York Times, 13 Amer. With Disab. Cas. (BNA) 565 (S.D.N.Y. 2001) provides a useful illustration of a scenario where an independent medical examination may be properly required. In that case the court found The New York Times had reasonably concluded that its employee’s deteriorating health was adversely affecting his performance where the employee had been absent from work for three weeks without explanation and The Times had received a report from the employee’s doctor that his patient was suffering from a mental disorder that prevented him from returning to work. Under these circumstances the court concluded that it was perfectly appropriate, and consistent with the letter and spirit of the ADA, for The Times to request that the employee undergo a medical examination as part of the interactive process designed to identify a potential reasonable accommodation for the employee’s disability. The court’s analysis, as it should be, was fact-intensive and placed the burden squarely on the employer to establish the necessity of a medical examination by pointing to objective evidence that the employee’s disability has had a deleterious effect on his ability to meet the demands of the job.

Before requiring an employee to submit to a medical examination, be it pre-employment or post-hire, careful consideration need be given to the procedural and substantive requirements of the ADA. Reflexive reactions to unusual workplace conduct are to be avoided at all costs. Rather, a medical examination ought only be required where the results would either tell the employer whether the employee is capable of performing the job in question without posing a direct threat to himself or herself or others, or aid the employer in determining the nature of a reasonable accommodation that might allow an employee with a disability to safely and capably satisfy the demands of his or her job. Blanket exclusions of individuals with disabilities of one kind or another will rarely if ever pass muster under the ADA. Medical screening of candidates for certain safety-sensitive or otherwise potentially dangerous jobs is certainly a justifiable means of identifying individuals with disabilities that, by their very nature, may create a heightened risk of injury or damage. But once armed with the medical data necessary to identify individuals burdened with such conditions, a case-by-case determination must be made as to whether each particular employee or applicant so afflicted in fact poses such dangers.