EEOC: Employer requested medical exams until one supported worker's firing

Dive Brief:

Brock Services, LLC, a Houston, Texas-based contractor, violated the Americans with Disabilities Act (ADA) when it fired an employee because he had glaucoma in one eye, the U.S Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit.
EEOC said that when the scaffolding team lead lost some vision in his right eye, the employer requested a medical release. He complied but Brock demanded a second and third exam before obtaining a release that it then used to fire the employee, the agency said in a statement announcing the lawsuit.
The suit, which alleged Brock regarded the employee as having a disability and fired him on that basis, seeks back pay with interest and compensatory and punitive damages.

Dive Insight:

"An employer cannot fire a worker with a medical impairment because of myths, fears, and stereotypes," Rayford O. Irvin, an EEOC district director, said in the statement announcing the suit.

Specifically, the ADA's "regarded as" prong of the definition of "disability" protects workers from discrimination based on an employer's belief that he or she has a disability. Once a difficult standard to meet, the 2008 amendments to the law made it easier for individuals to establish protection under that prong, according to EEOC. The commission now looks at "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," the agency said.

To avoid such claims, experts recommend that employers individually assess each employee and engage in a good-faith interactive process of looking for an accommodation. And when it comes to obtaining medical releases, disability-related inquiries and medical examinations of employees must be "job-related and consistent with business necessity," according to EEOC enforcement guidance.

Employers may require that workers needing accommodation see a health care professional of their choosing if his or her physician provides insufficient information, the document says. But "when an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation," EEOC holds.

And if an employer believes an employee will pose a direct threat, it can require that he or she be examined by an appropriate health care professional of the employer's choice, according to the guidance. The EEOC notes, however, that an employer "should be cautious about relying solely on the opinion of its own health care professional that an employee poses a direct threat where that opinion is contradicted by documentation from the employee's own treating physician, who is knowledgeable about the employee's medical condition and job functions, and/or other objective evidence."