Be super careful about asking medical questions and requiring medical exams.
For a medical exam or inquiry of a current employee to be legal under the ADA, it must be “job-related and consistent with business necessity.”
Don’t ask medical questions or subject employees to medical exams unless you have evidence that the employee has a medical condition that impairs their ability to do the job – or poses a direct threat.
That means a policy calling for periodic physicals or answers to medical questions is probably a bad idea. In a recent case, an employer agreed to pay $100,000 and take other steps to end a case that accused it of crossing the line.
DOJ Targets PATH
Port Authority Trans-Hudson Corp. (PATH) is a subsidiary of the Port Authority of New York and New Jersey. The latter entity is an interstate governmental agency that operates transportation facilities in New York and New Jersey
Those facilities include airports, bridges and tunnels, as well as train, bus and marine terminals.
The litigation giving rise to the consent decree that ended this case germinated with two administrative charges of discrimination that were filed with the Equal Employment Opportunity Commission in the latter part of 2014.
The first was filed by the union that represents PATH employees who are responsible for testing and maintaining railroad signaling equipment. The second was filed by a signal repairman.
Both charges alleged that PATH subjected its employees to unlawful medical exams and inquiries.
Specific Medical Questions
More specifically, PATH allegedly required railroad workers to undergo a mandatory medical evaluation on an annual basis. The evaluation required employees to complete a medical questionnaire that elicited information about disabilities.
For example, it asked whether the person filling out the questionnaire had specific conditions such as diabetes, cancer or depression.
Before 2018, PATH allegedly required workers to submit to an exam that included urinalysis as well as blood work.
The individual complainant alleged that when he showed up for an exam in 2014 and asked a nurse what his blood was being tested for, the nurse said, “Everything.” PATH asked him medical questions including questions about his family medical history. He refused to submit to the blood test.
The DOJ intervened in the investigation and accused PATH of violating both the ADA and the Genetic Information Nondiscrimination Act (GINA).
In a complaint dated the same day as the consent decree, it said PATH has threatened to discipline railroad workers who refused to submit to the exams and inquiries.
Until at least 2015, PATH allegedly required railroad workers to disclose genetic information by requesting family medical histories.
And until at least the end of 2020, it allegedly conducted “attendance review hearings” of any railroad worker who used more than 150 days of sick leave over the previous three years. At those hearings, supervisors allegedly demanded fewer absences.
Sick Leave Requirements
Another alleged transgression: Until August of 2018, PATH allegedly forced all railroad workers who used five straight days of sick leave to report on the sixth day for a mandatory fitness-for-duty exam.
The complaint included two counts. One alleged a violation of Title I of the ADA, and the other asserted a violation of GINA. It asked for compensatory relief as well as injunctive relief.
A consent decree matching the date of the complaint describes the steps that PATH has agreed to take to end the matter
No More Discrimination
Generally, PATH agreed not to discriminate against any applicant or employee on the basis of disability under the ADA or GINA.
It also specifically agreed not to retaliate against any individual for exercising their legal rights under the ADA or GINA.
And it agreed that in the future, it will not subject employees to annual medical exams, fitness-for-duty exams or medical inquiries.
Here’s the Standard to Meet
Instead, such exams and inquiries will be conducted only when they are job-related and consistent with business necessity.
PATH further agreed to stop conducting the challenged attendance review hearings going forward.
It will also appoint an ADA coordinator, who will be responsible for coordinating its efforts to comply with the consent decree.
New Policies, Procedures
In addition, PATH will prepare new policies and procedures relating to medical exams and inquiries and send them to the DOJ for approval.
It separately agreed to ensure the confidentiality of medical information relating to its employees.
It will provide relevant training to employees, and it will meet reporting and record keeping requirements.
And it will pay two aggrieved individuals, who are not named, $50,000 each.
Complaint and consent decree in United States of America v. Port Authority Trans-Hudson Corp., (D.N.J. 11/9/21).