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Total Articles: 9

Seventh Circuit Affirms Summary Judgment in Favor of Employer Finding That Required Mental-Health Examinations Did Not Violate the ADA

Executive Summary: Recently, the United States Court of Appeals for the Seventh Circuit in Painter v. Illinois Department of Transportation affirmed the district court’s grant of summary judgment to the employer in a lawsuit alleging a violation of the Americans with Disabilities Act (ADA), finding that a reasonable jury would have to find that the two mental-health examinations at issue were “job related and consistent with business necessity.”

The Eighth Circuit & the ADA, Part I: Court Tips the Scale in Employer’s Favor in Suit Challenging Sleep Test for Overweight Workers

In Parker v. Crete Carrier Corporation, et al, No. 16-1371 (October 12, 2016), the Eighth Circuit Court of Appeals held that a trucking company complied with the Americans with Disabilities Act (ADA) in requiring its drivers with body mass indexes (BMI) of 35 or above to undergo in-lab sleep studies to determine if they had sleep apnea, which could cause them to fall asleep at the wheel.

Employers Better Sober Up: The EEOC Is Targeting Prescription Drug Testing Policies

While prescription drug use and abuse pose serious concerns for the health and safety of workplaces, two recent cases filed by the U.S. Equal Employment Opportunity Commission (EEOC) suggest that employers need to be very cautious about how they deal with such issues.

Eighth Circuit Upholds Trucking Company's Sleep Study Requirement Based on Driver BMI

On October 12, 2016, the U.S. Court of Appeals for the Eighth Circuit found in favor of a large transportation employer’s driver sleep study testing requirement in a lawsuit challenging the practice under the Americans with Disabilities Act (ADA). The plaintiff driver in Parker v. Crete Carrier Corporation alleged that his employer violated the ADA by adopting a program requiring a class of its truck drivers, which included him, to undergo in-lab sleep studies.1 After medical advisory recommendations made to the Federal Motor Carrier Safety Administration (FMSCA) linked obstructive sleep apnea (OSA) to an increased risk of vehicle crashes, the employer implemented the sleep study requirement using driver Body Mass Index (BMI) as the sole criteria for participation.

Counseling May Be a “Medical Examination” Under the ADA

Whether psychological counseling is a “medical examination” under the Americans with Disabilities Act is an important question recently addressed by the Sixth Circuit Court of Appeals. This question is important because the ADA prohibits employers from requiring employees to undergo medical examinations unless they are “job related” and consistent with “business necessity.” In this case, the Court concluded by a split vote that the required counseling was a medical examination.

Employer's request for psychological counseling as criteria to continued employment is viewed as a "medical examination" under the ADA.

The Americans with Disabilities Act (ADA) prohibits employers from requiring a “medical examination” and from making inquiries about the nature or severity of an employee’s possible disability, unless such exam or inquiry is shown to be “job-related and consistent with business necessity.” Most employers understand this issue as it applies both to medical examinations of current employees and to post-offer pre-employment physicals. Many of those same employers, however, may not have considered the ADA ramifications of asking an obviously distressed employee from seeking mental health counseling.

Fitness-For-Duty Exam Can Be Based On Concern About Employee’s “Volatile” Behavior.

The Americans with Disabilities Act allows an employer to require an employee to undergo a Fitness For Duty Examination (FFDE) when health problems have had a substantial or injurious impact on an employee’s job performance. Such examination must be job-related and consistent with business necessity. The 9th U.S. Circuit Court of Appeals has held – as an issue of first impression for that Court - that an employer also can require an employee to undergo such exam as a “preemptive” measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work.

Fitness-for-duty exam can be based on concern about employee's "volatile" behavior.

The Americans with Disabilities Act allows an employer to require an employee to undergo a Fitness For Duty Examination (FFDE) when health problems have had a substantial or injurious impact on an employee’s job performance. Such examination must be job-related and consistent with business necessity. The 9th U.S. Circuit Court of Appeals has held – as an issue of first impression for that Court - that an employer also can require an employee to undergo such exam as a “preemptive” measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work.

Inconsistent administration of physical ability test can create a triable question of intentional discrimination.

The 4th U.S. Circuit Court of Appeals has reversed a lower court’s summary judgment in favor of an employer who required a female employee to take a physical ability test after an on-the-job injury, even though it did not require such a test for similarly situated male employees.
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