Retail Employment Law Blog : U.S. Lawyers & Attorneys for Labor Law

In July 2006, the Human Resources Department was advised that Harrison’s drug test had come back positive and was awaiting review by a Medical Review Officer (“MRO”). (A Medical Review Officer is a licensed physician with expertise in analyzing drug test results, who receives and reviews drug test results on an employer’s behalf.) Although it is unclear how Anthony learned of the positive drug test result, Anthony informed Harrison that he had tested positive for barbiturates. Anthony then called the MRO and passed the telephone to Harrison, remaining in the room while Harrison spoke with the MRO. Harrison explained to the MRO that he had epilepsy since he was two years old, that he took barbiturates to control it, and stated the amount of his dosage.

Harrison was later informed that he would not be returning to BEHI and was fired by the temporary agency.

Harrison filed suit in federal court, alleging that BEHI engaged in an improper medical inquiry in violation of the ADA, and that he was not hired due to a perceived disability, among other claims. The Eleventh Circuit held, first, that a plaintiff has a private right of action under the ADA’s provision concerning prohibited medical inquiries. Second, the court held that Harrison’s complaint sufficiently alleged an improper medical inquiry claim. His complaint alleged that following the pre-employment drug test, BEHI questioned him about his seizures, and he claimed damages for these allegedly prohibited medical inquiries.

Third, the Eleventh Circuit held BEHI’s inquiries were impermissible even though Harrison tested positive on his drug test. The Court stated, “While the district court correctly concluded that employers may conduct follow-up questioning in response to a positive drug test, it failed to acknowledge any limits on this type of questioning.” The Court stressed that while it is generally permissible for employers to make inquiries following a positive pre-employment drug test, those inquiries must be lawful, e.g., “what medications have you taken that might have resulted in this positive test result? Are you taking this medication under a lawful prescription?” The ADA’s regulations, coupled with the EEOC’s Enforcement Guidance (EEOC, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (EEOC Notice 915-002) (Oct. 10, 1995)), make it clear that disability-related questions still are prohibited at the pre-offer stage. See EEOC Enforcement Guidance (“employers should know that many questions about current or prior lawful drug use are likely to elicit information about a disability, and are therefore impermissible at the pre-offer stage”).
The Court further held that there were disputed issues of fact; in particular, Harrison’s testimony that Anthony was present for his entire conversation with the MRO conflicted with Anthony’s testimony that he did not know Harrison suffered from epilepsy. If Harrison’s version of the facts was believed, a jury could find that Anthony’s presence during the phone call to the MRO constituted an impermissible attempt to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.

In the other case, Indergard v. Georgia-Pacific Corp., No. 08-35278 (9th Cir. 2009), the Ninth Circuit held that a physical capacity examination administered to an employee who had been on a medical leave of absence was an impermissible “medical examination” under the Americans with Disabilities Act. The Court reversed summary judgment in favor of the employer and remanded the case to the trial court.

From 1984 until 2006, Kris Indergard worked for the employer, most recently as a Consumer Napkin Operator. In December 2003, she took a medical leave of absence to undergo knee surgery. She remained on leave until March 2005, when her orthopedic surgeon authorized her return to work with permanent restrictions. The employer required its employees to participate in a physical capacity evaluation (“PCE”) before returning to work from medical leave and so informed Indergard.
In the retail setting, PCE’s are increasingly used by risk management at distribution centers, to determine whether a new hire can perform the essential job functions without injury. As such, PCE’s are used as a vehicle to reduce worker’s compensation costs.

In this case, Columbia Rehabilitation, an independent occupational therapy provider, conducted the PCE on Indergard. Before administering the PCE, one of Columbia’s therapists performed a job analysis for the Napkin Operator position and for the Napkin Adjuster position, the next position for which Indergard was entitled to bid under the collective bargaining agreement. Based on interviews with staff in those positions, the therapist found the Operator position required employees to lift and carry 65-pound objects and the Adjuster position required employees to lift 75-pound objects. The therapist concluded that Indergard could not participate in the PCE because of her permanent restrictions. Indergard challenged this determination and provided the employer a supplemental note from her physician that lifted her permanent restrictions. The employer then scheduled Indergard for the PCE.

During the PCE, an occupational therapist recorded Indergard’s medical history, medication, pain levels, weight, height, blood pressure, and resting pulse. She observed Indergard’s gait, balance, and posture and measured the range of motion in her arms and legs. The therapist palpated Indergard’s knees and measured her ability to lift various amounts of weight and to carry increasing amounts of weight over a set distance. She also recorded details about Indergard’s vision, communication, cognitive ability, hearing, attitude, and behavior.

The therapist concluded that Indergard was unable to meet the 65-pound lift-and-carry requirement of the Operator position or the 75-pound lift requirement of the Adjuster position. She recommended that Indergard not return to work, and forwarded the results of the PCE to Indergard’s physician, who agreed with the therapist’s assessment. The employer then informed Indergard that she could not return to either position, that no other positions were available, and that her employment was terminated.

Indergard sued for disability discrimination under the ADA and Oregon law, alleging that the employer subjected her to an unlawful medical examination. Under the ADA, employers generally are prohibited from requiring employees to undergo a “medical examination,” unless it is “job-related and consistent with business necessity.” The ADA and its regulations do not define “medical examination.” The Ninth Circuit relied on the EEOC’s non-binding Enforcement Guidance on Disability-Related Inquiries and Medical Examinations to determine whether the employer’s PCE was a “medical examination.” The EEOC Guidance draws a distinction between medical examinations and physical agility tests, “which are not medical examinations.” To determine whether a test is a medical examination, the Guidance provides several factors to be considered, including whether the test is given and interpreted by a medical professional, whether the test reveals a physical or mental impairment, whether the test is invasive, and whether it measures an employee’s performance of a task or her physiological response to it. The Guidance also states that tests such as range-of-motion and blood-pressure screening should be considered “medical.” On the other hand, “physical agility tests” that measure an employee’s ability to perform a certain task are not medical examinations, as long as they do not include examinations that could be considered medical.

Applying the factors in the Guidance, the Court determined that the PCE was a “medical examination.” The Court noted that the “broad reach of the test was capable of revealing impairments of [Indergard’s] physical and mental health, particularly in light of [the therapist] recording Indergard’s subjective reports of her current pain level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior.” Accordingly, the Court held that the employer was not entitled to summary judgment on Indergard’s ADA claim and remanded the case to the trial court.

Retailers should draw several lessons from these cases:

1.     Conduct pre-employment drug testing after a conditional offer of employment has been extended. In Harrison, the drug test was conducted before the offer letter was sent to Harrison, making the employer’s inquiries impermissible. Some state laws require that pre-employment drug testing be conducted only after a conditional offer of employment has been extended. Retailers should review their pre-employment drug testing policies to ensure that testing occurs after the conditional offer of employment.
2.     Drug test results should not be reported to the retailer until after the MRO has reviewed and verified the result. Retailers should act only on drug test results that have been reviewed and verified by the MRO. (Some state laws require MRO review of drug test results.) One of the purposes of MRO review is to ensure that the retailer does not take action on a positive test result that might be explained by a legitimate medical reason, as was the case with Harrison. Retailers generally lack the medical expertise to make accurate conclusions about an employee’s explanation concerning his drug test result. The MRO is the only person who should discuss possible medical explanations for positive test results with applicants and employees because: (1) the MRO will keep the information provided by the applicant or employee confidential; and (2) the MRO has the medical expertise to make an appropriate conclusion about the applicant’s or employee’s potentially legitimate use of medications that may affect a drug test result. The retailer’s non-participation in the MRO review process actually protects the retailer from making erroneous decisions that could lead to discrimination claims, or from acquiring unnecessary knowledge of medical facts that could be the basis of later, unrelated discrimination claims.
3.     When determining whether an employee seeking to return from leave is able to perform the job’s functions, do not seek to learn more than is needed to make a decision about the employee’s ability to perform her former job. Indergard calls into question return-to-work examinations that are similar to the PCE at issue there, and it makes clear that, at least in the Ninth Circuit, EEOC Guidance will be given great weight when an unresolved issue is presented. It remains to be seen whether the Ninth Circuit or other Circuit Courts of Appeals would reach a different conclusion if some or all of the factors were not present.

The members of Jackson Lewis’ Disability and Drug Testing Practice Groups have extensive experience in these areas. Please speak to any Jackson Lewis attorney about getting in contact with lawyers in these practice groups.