For many years, FedEx employed a hard-of-hearing worker at Kennedy Airport who operated a “tug,” which is heavy machinery used to load and unload airplanes. After the employee committed a number of safety violations, FedEx required him to participate in a field test, devised by a FedEx safety committee to test the employee’s ability to hear co-workers under actual working conditions — on the tarmac and near airplanes with their engines running. The employee submitted to two field hearing tests. The safety officer who conducted the field hearing tests determined that the results were inconclusive. When the employee refused to participate in an additional field hearing test, his attorney suggested that he be transferred to another position that did not involve the operation of heavy machinery. FedEx complied, and the employee retained his former wage and benefits. Nevertheless, the employee sued FedEx in New York Federal District Court, claiming that FedEx discriminated against him due to his disability and that he was disadvantaged in his new job because it required more physical effort than operating the tug.
It is well established that, consistent with the ADA, an employer may not require an employee to submit to a medical examination or inquire regarding an employee’s disability unless the examination or inquiry is shown to be job-related and consistent with business necessity.
The court disposed of the employee’s claim that the field tests were not a permissible medical examination by holding that they were not medical examinations at all. Rather, the court found that the field tests were safety examinations, not subject to the ADA’s restrictions on medical examinations. The court noted that the field examinations were conducted by a safety officer and not a medical professional. Moreover, the court stressed that the purpose of the field examinations was not to determine whether the employee had a disability. The employee had submitted to periodic hearing tests (a medical examination), and his hearing impairment was well known to FedEx. Parenthetically, the court found that even if the field examinations were medical inquiries under the ADA, FedEx had a reasonable basis for testing the employee’s ability to safely operate the heavy machinery in light of his safety violations.
This court gave employers the green light to test persons with disabilities under regular working conditions to determine whether the employee could safely perform his or her job. It is important to note that the particular employee had a history of safety violations. It is not clear whether the court would have been as obliging had the employee performed without incident.