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Be Careful What You Ask For: How To Make Sure Your Return-to-Work Policies Don’t Violate the ADA

As the costs of doing business increase each year, many employers are looking for effective ways to ensure productivity among their employees, promote workplace safety and prevent chronic absenteeism. Many employers, for example, require that employees returning from a medical leave of absence undergo a “return-to-work” medical exam to ensure that the employee can safely perform his or her job functions.

Generally, return-to-work medical exams or disability-related inquiries are legal. Employers can ask questions about the medical issues surrounding an employee’s disability or leave. However, to comply with the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, the exams and disability-related inquiries must be limited in scope and narrowly tailored to evaluate whether the employee can perform the essential functions of the job. The employer cannot use the employee’s medical leave as an excuse to make broad, intrusive disability-related inquiries or subject the employee to medical exams that have nothing to do with why the employee went out on medical leave.

An Example of What NOT To Do
In Scott v. Napolitano, an employee suffered a number of physical injuries and psychological disorders that required him to take medical leave. Over a period of six years the employee suffered sinusitis, an injury to his right arm and shoulder, and was diagnosed with depression, anxiety and work-related stress. The employee’s supervisor became concerned that these health issues would impact his ability to perform the full range of his job duties and be trusted with his government issued side-arm. The supervisor recommended that the employee complete a “fitness for duty” examination.

Prior to the scheduled exam, the employee was asked to fill out a medical questionnaire by the examining physician. Many of the questions were very broad and not limited to a specific time-frame. For example, the employee was asked if he had ever been treated for a mental condition and to list all medications he was currently taking. In addition to the questionnaire, the employee was required to sign a release that permitted any doctor, hospital or clinic to release all of the employee’s medical information to his employer.

The employee refused to answer many of the questions in the medical questionnaire because he believed they violated his legal rights. Further, the employee crossed out the language of the release and wrote that he would only authorize the release of the results of the upcoming “fitness for duty” exam, not any other personal medical records. The employee was warned that he had 14 days to answer all of the questions and sign the full release. When the employee did not comply, he was suspended for insubordination and was advised that he must answer the questions and sign the release. The employee again refused and was terminated. The employee sued, alleging the employer’s practices violated the ADA and the Rehabilitation Act.

The court agreed with the employee and found that the questions in the medical questionnaire were impermissibly overbroad disability-related questions. The court held that medical exams and inquiries cannot be required unless those exams and/or inquiries are shown to be job-related and consistent with business necessity. A business necessity may include ensuring workplace safety or preventing excessive absences. Further, once a business necessity is shown, the exam or inquiry cannot be any broader or more intrusive than needed for the employer to determine if the employee is currently able to perform the essential functions of his or her job. For the most part, exams or inquiries related to the specific medical condition for which the employee took leave will be all that is warranted and should be limited to a specific time-frame.

Lessons for You
Return-to-work medical exams or disability-related inquiries are permissible as long as you comply with the ADA and Rehabilitation Act. Remember that these exams and inquiries must be driven by a business necessity, such as ensuring workplace safety. Also, the exams or inquiries must be limited to determining whether the employee can currently perform his or her essential job duties. Exams or inquiries not limited in time or tailored to the specific medical condition for which the employee took medical leave may violate the ADA and Rehabilitation Act and subject you to liability.

Notice Required — Your Duty as an Employer Under Executive Order 13496

Beginning on June 21, 2010, federal contractors and subcontractors that enter into new federal contracts, subcontracts or make modifications to existing contracts must post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”). Executive Order 13496 applies to all federal government contracts and subcontracts for the purchase, sale, or use of personal property or non-personal services. The government contracts must exceed $100,000 and subcontracts must exceed $10,000. Contracts and subcontracts for work performed exclusively outside of the United States, as well contracts and subcontracts exempted by the Secretary of Labor, do not fall under the provisions of the Executive Order.

Contents of the Required Notice
The notice required by the Executive Order sets forth the employees’ rights under the NLRA to organize and bargain collectively with employers, and their right to engage in protected concerted activity. The notice also sets forth the types of employer and union actions the NLRA considers illegal, as well as the contact information for the National Labor Relations Board. The required notice may be obtained from www.dol.gov or any field office of the DOL’s Office of Labor-Management Standards and must be in 11×17 size.

How to Comply:
You must display the required notice in conspicuous places in and about the plants and offices where it can be readily seen by employees engaged in activities related to the performance of the contract. The notice must be posted everywhere notices to employees about employment conditions are posted and not just where legal notices are placed.

If you customarily use electronic means to post notices, you must prominently post this notice on websites you customarily use. The electronic notice must include a link to the Department of Labor’s (“DOL”) website that contains the full text of the poster. The link must read, “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.” If electronic means are used, you must also physically post the notice in the workplace. The notice must be provided in the language spoken by a significant portion of your workforce.

Additionally, the Executive Order requires that federal contracts and subcontracts include certain prescribed language (the “employee notice clause”). The employee notice clause requires employers to comply with the notice requirement. The prescribed language does not need to be copied into a contract, but may instead be made a part of the contract by reference to 29 CFR Part 471, Appendix A to Subpart A.

Consequences for Non-Compliance:
The Office of Federal Contract Compliance Programs (“OFCCP”) is responsible for investigating employee and other complaints alleging non-compliance with the Executive Order. If you fail to comply with the Executive Order, your contract may be cancelled, terminated, or suspended. In addition, an order of debarment preventing you from entering into further government contracts may be issued.