Published in the Union Leader (6/5/2017)
Q: I am concerned that a medical condition is impacting an employee’s performance. Am I allowed to require the employee to get a medical examination to determine whether she can do her job?
A: Possibly, but it depends on the circumstances, and an employer must proceed carefully before requiring an employee to undergo a medical examination. The Americans with Disabilities Act (ADA) says that, except under certain circumstances, requiring medical examinations constitutes discrimination.
Thus, it is essential for an employer to know whether a medical examination is specifically permitted by the ADA and written guidance from the Equal Employment Opportunity Commission (EEOC).
An employer may only require a current employee to undergo a medical examination that is “job-related and consistent with business necessity.” (Different criteria apply to applicants who have been offered but not yet started employment.)
Based on EEOC guidance, this standard is generally met when an employer has a reasonable belief that either a medical condition will impair an employee’s ability to perform essential job functions or an employee will pose a “direct threat” due to a medical condition. A “direct threat” means “a significant risk of substantial harm to the health or safety” of the employee or others that cannot be eliminated or reduced by a reasonable accommodation and is assessed based on many factors.
The key is that the employer’s reasonable belief that the employee’s ability to perform essential job functions will be impaired or that the employee will pose a “direct threat” must be based on objective evidence and an assessment of the individual employee together with the job requirements of the employee’s position. The employer’s belief cannot be based on general assumptions or stereotypes about a particular medication condition.
The EEOC has stated that when, for example, an employer knows about an employee’s medical condition, has observed performance problems, and can reasonably attribute such problems to the medical condition, it may be job-related and consistent with business necessity to require a medical examination.
On the other hand, if an employer overhears an employee tell a co-worker that she is afraid she has cancer, but the employee continues to perform her normal duties, the employer would not have the reasonable belief necessary to require a medical examination.
An attorney knowledgeable about the ADA can help you navigate when it would be appropriate to require an employee to undergo a medical examination.
Benjamin can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.