EEOC Is Now Taking on Fitness-For-Duty Medical Releases

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By Eric B. Meyer

Congratulations!

Your fitness-for-duty employee medical examinations are job-related or consistent with business necessity. So, they pass muster with under the Americans with Disabilities Act. But, what about the medical information you request from employees in connection with the exam?

Oh yeah, there’s that too…

So, might you be violating not only the ADA, but also the Genetic Information Non-Discrimination Act?

Pushing overbroad medical releases

Last year, in this post about sending your Social Media Manager, Amanda Bynes, for a fitness for duty exam, I warned that there are some hoops you may need to jump through under the Americans with Disabilities Act.

In a recent press release touting a lawsuit filed by the U.S. Equal Employment Opportunity Commission, the administrative agency alleges that a Minnesota employer didn’t violate the law with its required fitness-for-duty exam.

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However, the EEOC does claim that the employer violated both the ADA and GINA by requiring an employee to submit overbroad medical release forms to have a fitness-for-duty examination. (GINA prohibits employers from requesting or requiring that employees disclose genetic information).

Employee fired for not signing a release

Here’s more from the press release:

In its lawsuit, the federal agency contended that Cummins [the employer] required an employee to sign various medical release forms that sought irrelevant information. Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said.

The EEOC maintains that by requiring the employee to execute an overly broad release, Cummins was making disability-related inquiries that were not job-related or consistent with business necessity. Such alleged conduct violates the Americans with Disabilities Act (ADA). Further, the EEOC asserts that the releases presented to the employee would have resulted in the disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC argues that Cummins also violated the anti-retaliation provisions of the ADA and GINA by firing the employee for his good-faith objections to the releases.”

Takeaways for employers

Obviously, these are just EEOC allegations. However, the EEOC offensive provides two takeaways for employers.

  • First, make sure that your fitness-for-duty medical examinations are job-related and consistent with business necessity.
  • Second, when you request medical information in connection with those examinations, ensure that the information sought is narrowly tailored, and specific to the job.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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