• How Fit Is Your Fitness-For-Duty Testing Process? The EEOC Weighs In.
  • September 29, 2014 | Author: Abigail M. Moland
  • Law Firm: McGrath North Mullin & Kratz, PC LLO - Omaha Office
  • In a new lawsuit filed on September 9, 2014, the EEOC takes new aim at employers for their fitness-for-duty exams. But this time, there’s a twist. Rather than focusing on the exam itself as a violation of the ADA, this new lawsuit, filed in a federal court in Minnesota, alleges that the employer violated both the ADA and Genetic Information Nondiscrimination Act (GINA) by requiring an employee to submit overbroad medical release forms in order to complete a fitness-for-duty examination.

    Remember that Title I of the ADA limits when an employer may obtain medical information from applicants and employees. Before a job offer is made, the ADA prohibits all disability-related inquiries (in other words, questions likely to elicit information about a disability) and medical examinations, even if they are related to the position. After a conditional job offer is made, an employer may ask disability-related questions and require medical examinations, as long as it does so for all entering employees in the same job category. Only when an employment begins may an employer make disability-related inquiries and require medical examinations, and only if those inquiries are job-related and consistent with business necessity.

    Title II of GINA, on the other hand, makes it illegal to discriminate against employees or applicants because of genetic information. Title II also bars the use of genetic information in making employment decisions and restricts employers from requesting, requiring or purchasing genetic information; and, strictly limits disclosure of an employee’s genetic information.

    In the Complaint, filed against Minnesota-based employer Cummins Power Generation, the EEOC alleges that the Company required an employee to sign various medical release forms that sought irrelevant information before taking a fitness-for-duty examination. When the employee refused to execute the releases presented to him, the Company fired him.

    The EEOC alleged that by asking the employee to execute an “irrelevant” and “overly broad” disclosure in conjunction with the fitness-for-duty exam, the Company violated the ADA because those inquiries were neither job-related nor consistent with business necessity. The Commission goes on to allege that the releases presented to the employee also violated GINA because they would have resulted in the disclosure of family medical history. The EEOC has also included in the Complaint retaliation claims under both statutes stemming from the Company’s termination of the employee following his refusal to execute the release.

    While we will continue to monitor this case and the EEOC’s continued focus on this area, employers are advised to revisit the content and scope of their fitness for duty exams, as well as the corresponding consent and release forms necessary to administer those exams.

    Specifically, employers still need to ensure that any fitness-for-duty medical examinations are job-related and consistent with business necessity. But, in light of the EEOC’s recent litigation efforts, employers will want to also review the actual medical information that is being requested in connection with the fitness-for-duty exam to confirm that the information sought is not only as narrowly-tailored as possible, but also, specific to the job.