The Problem:

Jack is a crane operator who works for Top 10 Construction, hoisting concrete panels that weigh several tons. A rigger on the ground helps him load the panels, and several other workers help him position them. During a break, Jack appears to have become light-headed, has to sit down abruptly, and seems to have some difficulty catching his breath. In response to a question from his supervisor about whether he is feeling all right, Jack says that this has happened to him a few times during the past several months, but he does not know why.

Could Top 10 ask Jack about his medical condition? Can Jack perform the essential functions of the job? Should Top 10 terminate Jack? If Top 10 terminates Jack, and Jack sues Top 10, claiming he was terminated because of a disability or a perceived disability, does Top 10 have a defense?

This scenario is taken from the EEOC's Enforcement Guidance on Disability-Related Inquiries, published in 2000 and available on the EEOC's website. In the Guidance, the EEOC states that employers may make disability-related inquiries, including requiring employees to participate in medical examinations. These inquiries must be job related and consistent with business necessity. An employer may make the inquiry when the employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."

Additionally, as recently explained by the Seventh Circuit Court of Appeals in Felix v. Wis. DOT, 2016 U.S. App. LEXIS 12462 (7th Cir. July 6, 2016), an employer may be protected against a former employee's wrongful termination suit where the employee poses a "direct threat" to workplace safety. In Felix, the Court explained that there may be instances in which an employee may pose a "direct threat" to the health or safety of himself or other individuals in the workplace. A "direct threat" occurs when there is a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." To determine whether an employee is a direct threat to himself and/or others, an employer must undertake an "an individualized assessment, based on reasonable medical judgment, of an employee's present ability to safely perform the essential functions of his job. Some of the factors include (1) the duration of the risk posed by the employee's condition; (2) the nature and severity of the potential harm that might result; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm."

The Solution:

The EEOC states that an employer may require its employee to have a medical examination to determine if he can perform the essential functions of his job. The examination, however, must be job related and consistent with business necessity.

Here, Top 10 has objective evidence that creates a reasonable belief that Jack may pose a "direct threat" to himself or others while operating the crane. The evidence is his behaviors and his statement to the supervisor. Accordingly, Top 10 may require Jack to obtain a medical examination from Jack's doctor or medical provider. To ensure that the medical examination is job related, Top 10 should give Jack his job description to show to his doctor or other medical provider. In addition, Top 10 may require documentation from Jack's doctor and then determine whether Jack can perform the essential functions of his job with or without a reasonable accommodation. If Top 10 chooses to terminate Jack because it believes that Jack poses a "direct threat" to himself or others at work, Top 10 may be protected by the "direct threat" defense as explained in Felix v. Wisconsin.

However, Top 10 may not have a job description, or, even if Top 10 had a job description, the job description may not list the essential functions and the physical requirements of the job. A job description that lists the essential functions and requirements of the job is important because, as explained previously, any medical inquiry examination of an employee needs to be job-related and consistent with business necessity. Therefore, Top 10, like all employers, needs to draft and implement an American With Disabilities Program. The program should include policies adopting the American With Disabilities Act and implementing the employer's obligation to provide reasonable accommodations to those qualified individuals with a disability. The program should also include the proper documentation, including job descriptions which list the essential functions and physical requirements of the job. The proper documentation should also include a document the employee should give to his or her doctor. That document could list the physical requirements and ask the doctor whether the employee is able to perform those duties or if the employee needs an accommodation. A "Functional Capacity Examination ("FCE") form" fulfills this part of the program. Finally, the program needs to set forth the procedures for analyzing the information in the FCE form and determining first, whether the employee is able to perform the essential functions of his job with or without a reasonable accommodation and, second, the nature of the employee's continued status as an employee.