29 CFR 1630.14

 Administrative Law: Governmental Information: Freedom of Information: Defenses & Exemptions: Medical & Personnel Files 

State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 940 N.E.2d 1280, 2010 Ohio LEXIS 3058 (Ohio 2010).

State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 940 N.E.2d 1280, 2010 Ohio LEXIS 3058 (Ohio 2010).

Overview: Physician was not entitled to an award of statutory damages in his public records request under Ohio Public Records Act, R.C. 149.43, because he did not transmit any of his written records requests by hand delivery or certified mail, as required by R.C. 149.43(C)(1).

• •Under 42 U.S.C.S. § 12112(d)(4)(B), a covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site and a covered entity may make inquiries into the ability of an employee to perform job-related functions. The information obtained by the covered entity must be treated as a confidential medical record. 42 U.S.C.S. §§ 12112(d)(3)(B) and 12112(d)(4)(C). 29 C.F.R. § 1630.14(c). Go To Headnote

 Civil Procedure: Discovery: Methods: General Overview 

Johnson v. Eastchester Union Free Sch. Dist., 211 F. Supp. 2d 514, 2002 U.S. Dist. LEXIS 13384 (S.D.N.Y. 2002).

Johnson v. Eastchester Union Free Sch. Dist., 211 F. Supp. 2d 514, 2002 U.S. Dist. LEXIS 13384 (S.D.N.Y. 2002).

Overview: No discrimination was shown since the change in the location and hours of the employee’s job did not constitute an adverse employment action, and there was no evidence of any discriminatory animus based on age.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12112 et seq., permits job-related medical examinations. 29 C.F.R. § 1630.14(c). Go To Headnote

Eustace v. S. Buffalo Mercy Hosp., 2001 U.S. Dist. LEXIS 16556 (W.D.N.Y. Oct. 4, 2001), aff'd, 36 Fed. Appx. 673, 2002 U.S. App. LEXIS 11228 (2d Cir. 2002).

Overview: The circumstantial evidence put forth by the employee did not meet her burden to establish a genuine issue of material fact as to whether she was perceived as being disabled.

• •The United States Court of Appeals for the Second Circuit has held that requiring someone whom the employer feels might not be physically capable of performing the tasks required for the job to submit to a physical examination does not mean that the employee is regarded as having such an impairment under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq. Other circuit courts of appeals have held that requesting an employee to take psychological exams does not prove that the employers perceived their employee as having a psychic disability. In addition, 29 C.F.R. § 1630.14(c) allows an employer to require medical examinations that are job-related and consistent with business necessity. Go To Headnote

Deckert v. City of Ulysses, 4 Am. Disabilities Cas. (BNA) 1569, 12 Am. Disabilities Dec. 961, 1995 U.S. Dist. LEXIS 14526 (D. Kan. Sept. 6, 1995), aff'd, 1996 U.S. App. LEXIS 33969 (10th Cir. Dec. 31, 1996).

Overview: A diabetic police officer’s employment was not terminated in violation of the Americans with Disabilities Act. The employer did not violate the officer’s due process rights when it terminated his employment for non-discriminatory reasons.

• •The Americans with Disabilities Act of 1990 permits, pursuant to 42 U.S.C.S. § 12112(4)(f)(A) and 29 C.F.R. § 1630.14(c), medical examinations when it is a business necessity. Go To Headnote

 Civil Rights Law: Protection of Disabled Persons: Americans With Disabilities Act: Defenses & Exceptions 

Gonzales v. Sandoval County, 2 F. Supp. 2d 1442, 8 Am. Disabilities Cas. (BNA) 1337, 1998 U.S. Dist. LEXIS 6142 (D.N.M. 1998).

Gonzales v. Sandoval County, 2 F. Supp. 2d 1442, 8 Am. Disabilities Cas. (BNA) 1337, 1998 U.S. Dist. LEXIS 6142 (D.N.M. 1998).

Overview: Although an employee was entitled to back pay for a county’s prohibited inquiry under the ADA, the employee was not entitled to front pay or reinstatement because there were hostilities and the employee did not suffer continuing discrimination.

• •Although a police officer must be physically fit to be certified under N.M. Stat. Ann. § 29-7-6(A)(5) (1997), state law can only require fitness to the extent permissible under the Americans with Disabilities Act, that is, the level of fitness necessary to perform the essential functions of the relevant position, with or without reasonable accommodations. U.S. Const. art. VI, cl. 2, 42 U.S.C.S. § 12111(8). N.M. Stat. Ann. § 29-7-6(A)(5) (1997) only supports a defense of job relatedness and business necessity for an inquiry that is necessary to ascertain this level of fitness or whether any shortcoming can be reasonably accommodated. 29 C.F.R. § 1630.14(c). Whether the inquiry was excepted cannot be controlled exclusively by the state statute, but depends upon the nature of the inquiry and the facts supporting any doubt that the employee can, or will continue to be able to, effectively perform the essential functions of his or her position. Go To Headnote

 Civil Rights Law: Protection of Disabled Persons: Americans With Disabilities Act: Enforcement 

Harris v. Harris & Hart, Inc., 7 Accom. Disabilities Dec. (CCH) ¶ -243, 206 F.3d 838, 2000 Cal. Daily Op. Service 1968, 2000 D.A.R. 2689, 7 Accom. Disabilities Dec. (CCH) P7-243, 10 Am. Disabilities Cas. (BNA) 481, 2000 U.S. App. LEXIS 3713 (9th Cir. 2000).

Harris v. Harris & Hart, Inc., 7 Accom. Disabilities Dec. (CCH) ¶ -243, 206 F.3d 838, 2000 Cal. Daily Op. Service 1968, 2000 D.A.R. 2689, 7 Accom. Disabilities Dec. (CCH) P7-243, 10 Am. Disabilities Cas. (BNA) 481, 2000 U.S. App. LEXIS 3713 (9th Cir. 2000).

Overview: Summary judgment for employer was proper; requiring applicant to provide medical release before rehiring was an appropriate pre-offer medical inquiry of a former employee with a known disability that did not violate ADA.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12112(d)(2)(B), creates an exception for acceptable medical inquiries: a covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. The Equal Employment Opportunity Commission interprets this exception narrowly, noting that although employers are permitted to make pre-employment inquiries into the ability of an applicant to perform job-related functions, the inquiry must be narrowly tailored. Guidance on Title I, 29 C.F.R. pt. 1630, app. § 1630.14(a). For example, the employer may describe or demonstrate the job function and inquire whether or not the applicant can perform that function with or without reasonable accommodation. Go To Headnote

 Civil Rights Law: Protection of Disabled Persons: Americans With Disabilities Act: Scope 

State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 940 N.E.2d 1280, 2010 Ohio LEXIS 3058 (Ohio 2010).

State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 940 N.E.2d 1280, 2010 Ohio LEXIS 3058 (Ohio 2010).

Overview: Physician was not entitled to an award of statutory damages in his public records request under Ohio Public Records Act, R.C. 149.43, because he did not transmit any of his written records requests by hand delivery or certified mail, as required by R.C. 149.43(C)(1).

• •Under 42 U.S.C.S. § 12112(d)(4)(B), a covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site and a covered entity may make inquiries into the ability of an employee to perform job-related functions. The information obtained by the covered entity must be treated as a confidential medical record. 42 U.S.C.S. §§ 12112(d)(3)(B) and 12112(d)(4)(C). 29 C.F.R. § 1630.14(c). Go To Headnote

Miller v. City of Springfield, 146 F.3d 612, 8 Am. Disabilities Cas. (BNA) 321, 1998 U.S. App. LEXIS 13385 (8th Cir. 1998), reh'g, en banc, denied, 1998 U.S. App. LEXIS 20523 (8th Cir. July 30, 1998).

Overview: The district court properly entered judgment in favor of city and its employees because an applicant, denied a position as a police recruit for failure to pass psychological exam, presented no evidence that they regarded her as disabled.

• •29 C.F.R. § 1630.14(b)(3) provides: Medical examinations conducted in accordance with this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity. Go To Headnote

Stinson v. West Suburban Hosp. Medical Ctr., 1998 U.S. Dist. LEXIS 566 (N.D. Ill. Jan. 13, 1998).

Overview: The employer was entitled to establish reasonable qualifications for position as long as they were job-related and consistent with business necessity, and to condition an employment offer upon the results of a post-offer physical examination.

• •Ultimately, it is an employer’s prerogative to establish reasonable qualifications for a position. As long as the qualification standard is job-related for the position in question and consistent with business necessity, an employer is free to use reasonable qualifications to screen out potential employees. 42 U.S.C.S. § 12112(6). Not only is an employer at liberty to enforce its qualification standards, but it is entitled to make an applicant’s employment offer conditioned upon the results of a post-offer medical examination. 42 U.S.C.S. § 12112(d)(3), 29 C.F.R. § 1630.14(b). Go To Headnote

 Education Law: Faculty & Staff: Qualifications: Mental & Physical Health 

Johnson v. Goodwill Indus., 1998 U.S. Dist. LEXIS 21040 (E.D.N.C. Dec. 16, 1998).

Johnson v. Goodwill Indus., 1998 U.S. Dist. LEXIS 21040 (E.D.N.C. Dec. 16, 1998).

Overview: An ex-employee’s opinion that she was able to perform the duties of her job could not bar an employer’s right to request a fitness for duty exam under the American with Disabilities Act and refusal to take such exam was grounds for termination.

• •It is undisputed that the Americans With Disabilities Act (ADA) authorizes employers to require medical examinations which are job-related and consistent with business necessity, 42 U.S.C.S.§ 12112(d)(4)(A). The ADA also expressly makes acceptable medical examinations and inquiries which evaluate the ability of an employee to perform job-related functions, 42 U.S.C.S.§ 12112(d)(4)(B). Additionally, the regulations promulgated in accordance with the ADA state that an employer may require a medical examination and/or inquiry of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions, 29 C.F.R. § 1630.14(c). Employers may also make inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. Go To Headnote

 Evidence: Privileges: Doctor-Patient Privilege: Elements 

Ballard v. Healthsouth Corp., 147 F. Supp. 2d 529, 11 Am. Disabilities Cas. (BNA) 1717, 2001 U.S. Dist. LEXIS 7518 (N.D. Tex. 2001).

Ballard v. Healthsouth Corp., 147 F. Supp. 2d 529, 11 Am. Disabilities Cas. (BNA) 1717, 2001 U.S. Dist. LEXIS 7518 (N.D. Tex. 2001).

Overview: Summary judgment was granted in an ADA action. The employer was not required to keep the plaintiff’s medical condition a secret and the work environment which plaintiff complained of did not rise to the level of a hostile work environment.

• •There are three circumstances under the Americans with Disabilities Act in which an employer must protect the confidentiality of medical information obtained about its employees. An employer may require new employees to undergo a medical exam under certain circumstances and provided that information obtained regarding the medical condition or history of the applicant is treated as a confidential medical record. 42 U.S.C.S. § 12112(d)(3). Under 42 U.S.C.S. § 12112(d)(4)(A), an employer may require an employee to undergo a medical exam if the exam is shown to be job-related and consistent with business necessity. An employer must keep information obtained pursuant to such an exam confidential. 29 C.F.R. § 1630.14 (2000). Finally, under 42 U.S.C.S. § 12112(d)(4)(B), an employer may conduct voluntary medical examinations, which are part of an employee health program available to employees, but the employer must treat information obtained as confidential. Go To Headnote

Scott v. Leavenworth Unified Sch. Dist. No. 453, 190 F.R.D. 583, 1999 U.S. Dist. LEXIS 20053 (D. Kan. 1999).

Overview: Personnel files and medical information relevant to plaintiff’s disability discrimination claim were subject to production in discovery, but once produced were protected from disclosure except as necessary for litigation.

• •The Americans with Disabilities Act (ADA) and its regulations expressly prohibit the disclosure of information about the medical condition or history of an employee when that information is obtained through any medical examination or in response to a medical inquiry allowed under the ADA. Both the statute and the regulations provide that such medical information must be collected and maintained on separate forms and kept in separate medical files and treated as a confidential medical record. 42 U.S.C.S. § 12112(d)(3)(B); 29 C.F.R. § 1630.14(c)(1). Go To Headnote

 Evidence: Privileges: Doctor-Patient Privilege: Scope 

Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828, 13 Am. Disabilities Cas. (BNA) 1639, 2003 U.S. Dist. LEXIS 130 (C.D. Ill. 2003).

Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828, 13 Am. Disabilities Cas. (BNA) 1639, 2003 U.S. Dist. LEXIS 130 (C.D. Ill. 2003).

Overview: Employer’s motion to dismiss ADA claims was denied on finding that former and current employees need not be qualified individuals with a disability in order to bring a claim that an employer required improper or unauthorized medical inquiries.

• •For job applicants who have not received an offer of employment, under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., an employer may only ask about the applicant’s ability to perform job-related functions, 42 U.S.C.S. § 12112(d)(2)(B), but may not inquire whether the applicant has a disability, 42 U.S.C.S. § 12112(d)(2)(A). 29 C.F.R. § 1630.14(a). After extending an offer of employment to an applicant, an employer may condition that offer on the results of a medical examination provided that all entering employees are subject to the examination and that the results are maintained as confidential medical records. 42 U.S.C.S. § 12112(d)(3); 29 C.F.R. § 1630.14(b). Once the period of employment has commenced, the employer may not inquire whether an employee has a disability unless the examination or inquiry is “job-related and consistent with business necessity. ” 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c). Go To Headnote

 Governments: State & Territorial Governments: Boundaries 

EEOC v. Texas Bus Lines, 2 Accom. Disabilities Dec. (CCH) ¶ -309, 923 F. Supp. 965, 2 Accom. Disabilities Dec. (CCH) P2-309, 5 Am. Disabilities Cas. (BNA) 878, 17 Am. Disabilities Dec. 1375, 1996 U.S. Dist. LEXIS 8800 (S.D. Tex. 1996).

EEOC v. Texas Bus Lines, 2 Accom. Disabilities Dec. (CCH) ¶ -309, 923 F. Supp. 965, 2 Accom. Disabilities Dec. (CCH) P2-309, 5 Am. Disabilities Cas. (BNA) 878, 17 Am. Disabilities Dec. 1375, 1996 U.S. Dist. LEXIS 8800 (S.D. Tex. 1996).

Overview: Qualified job applicant’s obesity, without additional medical problems, was not a disability as defined by Americans with Disabilities Act, under which employer was liable for third-party physician’s discriminatory rejection of obese applicant.

• •The regulations promulgated under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. 1211 et seq., specifically provide that the results of a medical examination shall not be used for any purpose inconsistent with the ADA. 29 C.F.R. § 1630.14(b)(2). Additionally, the ADA prohibits employers from participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by the ADA. 42 U.S.C.S. § 12112(b)(2). Go To Headnote

 Governments: State & Territorial Governments: Employees & Officials 

Gonzales v. Sandoval County, 2 F. Supp. 2d 1442, 8 Am. Disabilities Cas. (BNA) 1337, 1998 U.S. Dist. LEXIS 6142 (D.N.M. 1998).

Gonzales v. Sandoval County, 2 F. Supp. 2d 1442, 8 Am. Disabilities Cas. (BNA) 1337, 1998 U.S. Dist. LEXIS 6142 (D.N.M. 1998).

Overview: Although an employee was entitled to back pay for a county’s prohibited inquiry under the ADA, the employee was not entitled to front pay or reinstatement because there were hostilities and the employee did not suffer continuing discrimination.

• •Although a police officer must be physically fit to be certified under N.M. Stat. Ann. § 29-7-6(A)(5) (1997), state law can only require fitness to the extent permissible under the Americans with Disabilities Act, that is, the level of fitness necessary to perform the essential functions of the relevant position, with or without reasonable accommodations. U.S. Const. art. VI, cl. 2, 42 U.S.C.S. § 12111(8). N.M. Stat. Ann. § 29-7-6(A)(5) (1997) only supports a defense of job relatedness and business necessity for an inquiry that is necessary to ascertain this level of fitness or whether any shortcoming can be reasonably accommodated. 29 C.F.R. § 1630.14(c). Whether the inquiry was excepted cannot be controlled exclusively by the state statute, but depends upon the nature of the inquiry and the facts supporting any doubt that the employee can, or will continue to be able to, effectively perform the essential functions of his or her position. Go To Headnote

 Healthcare Law: Business Administration & Organization: Patient Confidentiality: General Overview 

EEOC v. C.R. Eng., Inc., 14 Accom. Disabilities Dec. (CCH) ¶ 4-197, 644 F.3d 1028, 14 Accom. Disabilities Dec. (CCH) P14-197, 24 Am. Disabilities Cas. (BNA) 897, 2011 U.S. App. LEXIS 8971 (10th Cir. 2011).

EEOC v. C.R. Eng., Inc., 14 Accom. Disabilities Dec. (CCH) ¶ 4-197, 644 F.3d 1028, 14 Accom. Disabilities Dec. (CCH) P14-197, 24 Am. Disabilities Cas. (BNA) 897, 2011 U.S. App. LEXIS 8971 (10th Cir. 2011).

Overview: A former employer was properly awarded summary judgment in a former employee’s ADA lawsuit because the employee failed to show that he was terminated from his truck driver’s job and his driver-trainer job due to his condition as HIV positive, rather than due to his actions while training a driver and his unapproved return home while on assignment.

• •Any information obtained through a post-offer entrance medical examination under 42 U.S.C.S. § 12112(d)(3) or a voluntary medical examination or inquiry under 42 U.S.C.S. § 12112(d)(4) must be treated as a confidential medical record. 42 U.S.C.S. §§ 12112(d)(3)(B), (d)(4)(C); 29 C.F.R. § 1630.14(c)(1) provides that information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, subject to limited exceptions. Disclosure of confidential information obtained through an authorized medical examination or inquiry would constitute a violation of § 12112(d) and could give rise to a claim under the Americans with Disabilities Act (ADA). 42 U.S.C.S. § 12112(d)(3)(C) states that the results of an examination conducted under the authority of 42 U.S.C.S. §§ 12112(d)(3) or (d)(4) must be used only in accordance with this title. The ADA prohibits an employer from disclosing confidential medical information about an ex-employee. Go To Headnote

State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 940 N.E.2d 1280, 2010 Ohio LEXIS 3058 (Ohio 2010).

Overview: Physician was not entitled to an award of statutory damages in his public records request under Ohio Public Records Act, R.C. 149.43, because he did not transmit any of his written records requests by hand delivery or certified mail, as required by R.C. 149.43(C)(1).

• •Under 42 U.S.C.S. § 12112(d)(4)(B), a covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site and a covered entity may make inquiries into the ability of an employee to perform job-related functions. The information obtained by the covered entity must be treated as a confidential medical record. 42 U.S.C.S. §§ 12112(d)(3)(B) and 12112(d)(4)(C). 29 C.F.R. § 1630.14(c). Go To Headnote

EEOC v. Teamsters Local 804, 11 Accom. Disabilities Dec. (CCH) ¶ 1-195, 11 Accom. Disabilities Dec. (CCH) P11-195, 16 Am. Disabilities Cas. (BNA) 307, 2004 U.S. Dist. LEXIS 22452 (S.D.N.Y. Nov. 4, 2004).

Overview: EEOC may have been able to prove that the employer obtained John Doe’s HIV status information through inquiries in connection with use of sick time for medical appointments and that the union obtained same. EEOCs complaint survived motion to dismiss.

• •Title I of the Americans with Disabilities Act of 1990 (ADA) outlines three circumstances under which a covered entity must protect the confidentiality of an employee’s medical condition or history. 42 U.S.C.S. § 12112(d). Specifically, a covered entity is required to keep medical information confidential if it is obtained when: (1) the covered entity requires an individual to whom employment has been extended to undergo a pre-employment medical exam prior to the commencement of employ, 42 U.S.C.S. § 12112(d)(3); (2) the covered entity requires a current employee to undergo a medical examination or respond to an inquiry that is job-related and consistent with business necessity, 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); or (3) the covered entity conducts a voluntary medical examination that is part of an employee health program available at the work site, 42 U.S.C.S. § 12112(d)(4)(B). Go To Headnote

Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828, 13 Am. Disabilities Cas. (BNA) 1639, 2003 U.S. Dist. LEXIS 130 (C.D. Ill. 2003).

Overview: Employer’s motion to dismiss ADA claims was denied on finding that former and current employees need not be qualified individuals with a disability in order to bring a claim that an employer required improper or unauthorized medical inquiries.

• •For job applicants who have not received an offer of employment, under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., an employer may only ask about the applicant’s ability to perform job-related functions, 42 U.S.C.S. § 12112(d)(2)(B), but may not inquire whether the applicant has a disability, 42 U.S.C.S. § 12112(d)(2)(A). 29 C.F.R. § 1630.14(a). After extending an offer of employment to an applicant, an employer may condition that offer on the results of a medical examination provided that all entering employees are subject to the examination and that the results are maintained as confidential medical records. 42 U.S.C.S. § 12112(d)(3); 29 C.F.R. § 1630.14(b). Once the period of employment has commenced, the employer may not inquire whether an employee has a disability unless the examination or inquiry is “job-related and consistent with business necessity. ” 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c). Go To Headnote

Ballard v. Healthsouth Corp., 147 F. Supp. 2d 529, 11 Am. Disabilities Cas. (BNA) 1717, 2001 U.S. Dist. LEXIS 7518 (N.D. Tex. 2001).

Overview: Summary judgment was granted in an ADA action. The employer was not required to keep the plaintiff’s medical condition a secret and the work environment which plaintiff complained of did not rise to the level of a hostile work environment.

• •There are three circumstances under the Americans with Disabilities Act in which an employer must protect the confidentiality of medical information obtained about its employees. An employer may require new employees to undergo a medical exam under certain circumstances and provided that information obtained regarding the medical condition or history of the applicant is treated as a confidential medical record. 42 U.S.C.S. § 12112(d)(3). Under 42 U.S.C.S. § 12112(d)(4)(A), an employer may require an employee to undergo a medical exam if the exam is shown to be job-related and consistent with business necessity. An employer must keep information obtained pursuant to such an exam confidential. 29 C.F.R. § 1630.14 (2000). Finally, under 42 U.S.C.S. § 12112(d)(4)(B), an employer may conduct voluntary medical examinations, which are part of an employee health program available to employees, but the employer must treat information obtained as confidential. Go To Headnote

Scott v. Leavenworth Unified Sch. Dist. No. 453, 190 F.R.D. 583, 1999 U.S. Dist. LEXIS 20053 (D. Kan. 1999).

Overview: Personnel files and medical information relevant to plaintiff’s disability discrimination claim were subject to production in discovery, but once produced were protected from disclosure except as necessary for litigation.

• •The Americans with Disabilities Act (ADA) and its regulations expressly prohibit the disclosure of information about the medical condition or history of an employee when that information is obtained through any medical examination or in response to a medical inquiry allowed under the ADA. Both the statute and the regulations provide that such medical information must be collected and maintained on separate forms and kept in separate medical files and treated as a confidential medical record. 42 U.S.C.S. § 12112(d)(3)(B); 29 C.F.R. § 1630.14(c)(1). Go To Headnote

 Labor & Employment Law: Disability & Unemployment Insurance: General Overview 

Holiday v. City of Chattanooga, 7 Accom. Disabilities Dec. (CCH) ¶ -242, 206 F.3d 637, 2000 FED App. 0087P, 7 Accom. Disabilities Dec. (CCH) P7-242, 10 Am. Disabilities Cas. (BNA) 501, 2000 U.S. App. LEXIS 3660 (6th Cir. 2000), reh'g, en banc, denied, 2000 U.S. App. LEXIS 9557 (6th Cir. May 4, 2000).

Holiday v. City of Chattanooga, 7 Accom. Disabilities Dec. (CCH) ¶ -242, 206 F.3d 637, 2000 FED App. 0087P, 7 Accom. Disabilities Dec. (CCH) P7-242, 10 Am. Disabilities Cas. (BNA) 501, 2000 U.S. App. LEXIS 3660 (6th Cir. 2000), reh'g, en banc, denied, 2000 U.S. App. LEXIS 9557 (6th Cir. May 4, 2000).

Overview: Grant of summary judgment for city reversed because a genuine issue of material fact existed under the ADA as to whether city improperly refused to hire HIV-positive applicant as police officer because of his disability.

• •The Americans with Disabilities Act’s (ADA), 42 U.S.C.S. § 12101, prohibitions against employment discrimination expressly extend to medical examinations and inquiries. 42 U.S.C.S. § 12112(d)(1). Towards this end, the regulations promulgated under the ADA provide that the results of such medical examination shall not be used for any purpose inconsistent with the ADA. 29 C.F.R. § 1630.14(b)(2). Go To Headnote

 Labor & Employment Law: Discrimination: Accommodation 

Covelli v. Nat'l Fuel Gas Distrib. Corp., 2001 U.S. Dist. LEXIS 23932 (W.D.N.Y. Dec. 6, 2001), aff'd, 49 Fed. Appx. 356, 2002 U.S. App. LEXIS 22566 (2d Cir. 2002).

Covelli v. Nat'l Fuel Gas Distrib. Corp., 2001 U.S. Dist. LEXIS 23932 (W.D.N.Y. Dec. 6, 2001), aff'd, 49 Fed. Appx. 356, 2002 U.S. App. LEXIS 22566 (2d Cir. 2002).

Overview: An employee failed to present a prima facie case of disability discrimination because he did not establish that the employer perceived him as suffering from a disability within the meaning of the ADA.

• •An employer may require medical proof that an employee is capable of performing the essential functions of a position. 42 U.S.C.S. § 12112(d)(4). Where a plaintiff has previously requested accommodation of his disability for the same position, a defendant is not prohibited from requesting documentation from an appropriate medical professional concerning plaintiff’s condition. 29 C.F.R. § 1630.14(c). If an employer is factually mistaken about the extent of an employee’s impairment, and the employee or his agent is responsible for the mistake, the employer is not liable under the Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq. Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 9 Accom. Disabilities Dec. (CCH) ¶ -242, 183 F. Supp. 2d 1292, 9 Accom. Disabilities Dec. (CCH) P9-242, 12 Am. Disabilities Cas. (BNA) 1363, 2001 U.S. Dist. LEXIS 22544 (D. Kan. 2001).

Overview: Claim of improper medical inquiry under ADA was not subject to disparate impact analysis. After employee had stroke, and was under work restrictions, employer properly attempted to determine whether employee could perform outside sales job.

• •The regulations implementing the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., allow employers to make medical inquiries regarding any reasonable accommodations that may be required to assist a qualified individual with a disability perform a job. 29 C.F.R. Pt. 1630, App. § 1630.14 (c). Go To Headnote

 Labor & Employment Law: Discrimination: Age Discrimination: Coverage & Definitions: General Overview 

O'Neal v. City of New Albany, 10 Accom. Disabilities Dec. (CCH) ¶ 0-086, 83 Empl. Prac. Dec. (CCH) ¶ 1132, 293 F.3d 998, 10 Accom. Disabilities Dec. (CCH) P10-086, 13 Am. Disabilities Cas. (BNA) 289, 83 Empl. Prac. Dec. (CCH) P41132, 89 Fair Empl. Prac. Cas. (BNA) 221, 2002 U.S. App. LEXIS 11740 (7th Cir. 2002), reh'g denied, 2002 U.S. App. LEXIS 14875 (7th Cir. July 22, 2002).

O'Neal v. City of New Albany, 10 Accom. Disabilities Dec. (CCH) ¶ 0-086, 83 Empl. Prac. Dec. (CCH) ¶ 1132, 293 F.3d 998, 10 Accom. Disabilities Dec. (CCH) P10-086, 13 Am. Disabilities Cas. (BNA) 289, 83 Empl. Prac. Dec. (CCH) P41132, 89 Fair Empl. Prac. Cas. (BNA) 221, 2002 U.S. App. LEXIS 11740 (7th Cir. 2002), reh'g denied, 2002 U.S. App. LEXIS 14875 (7th Cir. July 22, 2002).

Overview: Where applicant was first told that his information was not sent along for approval because he had not passed medical exam but was later told that it was not sent because he was over maximum hiring age, employer’s reasons were pretextual.

• •42 U.S.C.S. § 12112(d)(2) prohibits preemployment medical examinations or inquiries unless they are focused on the ability of the applicant to perform job-related functions. 29 C.F.R. § 1630.14(a). But once an employer has made an offer of employment to an applicant, the employer may require a medical examination and may condition an offer of employment on the results. 42 U.S.C.S. § 12112(d)(3). A post-offer examination does not have to be job-related. 29 C.F.R. § 1630.14(b)(3). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: General Overview 

Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157, 2006 U.S. Dist. LEXIS 73361 (E.D.N.Y. 2006), aff'd, 13 Accom. Disabilities Dec. (CCH) ¶ 3-129, 531 F.3d 127, 13 Accom. Disabilities Dec. (CCH) P13-129, 20 Am. Disabilities Cas. (BNA) 1281, 2008 U.S. App. LEXIS 13850 (2d Cir. 2008).

Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157, 2006 U.S. Dist. LEXIS 73361 (E.D.N.Y. 2006), aff'd, 13 Accom. Disabilities Dec. (CCH) ¶ 3-129, 531 F.3d 127, 13 Accom. Disabilities Dec. (CCH) P13-129, 20 Am. Disabilities Cas. (BNA) 1281, 2008 U.S. App. LEXIS 13850 (2d Cir. 2008).

Overview: In an action brought under the ADA and the New York Human Rights Law, defendants’ motion for judgment as a matter of law was denied; the jury could have easily found that the employee’s cerebral palsy substantially limited his ability to learn, walk, drive, and generally perform most of the functions commonly taken for granted in ordinary life.

• •To protect disabled job applicants from being unfairly judged on the basis of a disability, the Equal Employment Opportunity Commission regulates the questions an employer may ask before extending a conditional job offer, as well as the standards by which such an employer may determine a candidate’s qualifications. One of the regulations explicitly permits an employer, prior to making a job offer, to inquire into the ability of an applicant to perform job-related functions. 29 C.F.R. § 1630.14(a). However, as a general matter, it is unlawful for a covered entity to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity. 29 C.F.R. § 1630.10. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Coverage & Definitions: General Overview 

Conrad v. Bd. of Johnson County Comm'rs, 237 F. Supp. 2d 1204, 14 Am. Disabilities Cas. (BNA) 936, 2002 U.S. Dist. LEXIS 21610 (D. Kan. 2002).

Conrad v. Bd. of Johnson County Comm'rs, 237 F. Supp. 2d 1204, 14 Am. Disabilities Cas. (BNA) 936, 2002 U.S. Dist. LEXIS 21610 (D. Kan. 2002).

Overview: Employee’s ADEA claim failed; court found that the employee had submitted nothing more than speculation in support of her claim that the employer’s stated reasons for her termination were pretextual and that age played a role in her termination.

• •Generally speaking, the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12111 et seq., prohibits employers from inquiring as to whether an employee has a disability or inquiring as to the nature and severity of any disability. 42 U.S.C.S. § 12112(d)(4)(A). This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. An employer is allowed, however, to make medical inquiries of employees in certain situations. A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). A covered entity may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). The Equal Employment Opportunity Commission interprets this regulation as permitting employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. pt. 1630, app. § 1630.13(b). An employer’s request that an employee undergo a medical examination must be supported by evidence that would cause a reasonable person to inquire as to whether an employee is still capable of performing his job. These rules apply to psychiatric and mental evaluations as well as medical examinations. Go To Headnote

Garrison v. Baker Hughes Oilfield Operations, Inc., 10 Accom. Disabilities Dec. (CCH) ¶ 0-034, 287 F.3d 955, 10 Accom. Disabilities Dec. (CCH) P10-034, 12 Am. Disabilities Cas. (BNA) 1825, 2002 U.S. App. LEXIS 7352 (10th Cir. 2002).

Overview: While the employee admitted he falsely represented his medical history, it was within the province of the jury to ascribe withdrawal of the job offer to discriminatory use of medical exam results in violation of the ADA.

• •42 U.S.C.S. § 12112(d)(3)(A), (B) claims arise out of an employer’s post-offer hiring practices and are not related to an entering employee’s disability status. On the other hand, a violation of 42 U.S.C.S. § 12112(d)(3)(C) is contingent not only upon whether an employer conducted a post-offer medical examination, but also upon the entering employee’s ability to demonstrate use of collected information not “in accordance” with subchapter I of the Americans with Disabilities Act of 1990. Thus, to recover under 42 U.S.C.S. § 12112(d)(3)(C) a plaintiff must show the employer used collected medical information to discriminate on the basis of a disability. 42 U.S.C.S. § 12112(a); 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 9 Accom. Disabilities Dec. (CCH) ¶ -242, 183 F. Supp. 2d 1292, 9 Accom. Disabilities Dec. (CCH) P9-242, 12 Am. Disabilities Cas. (BNA) 1363, 2001 U.S. Dist. LEXIS 22544 (D. Kan. 2001).

Overview: Claim of improper medical inquiry under ADA was not subject to disparate impact analysis. After employee had stroke, and was under work restrictions, employer properly attempted to determine whether employee could perform outside sales job.

• •Generally, the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., ADA prohibits employers from making inquiries as to whether an employee is an individual with a disability or as to the nature and severity of any such disability. 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.13(b). This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. 29 C.F.R. pt. 1630, app. § 1630.13 (b). An employer is allowed, however, to make medical inquiries of employees as long as such inquiries are job related and consistent with business necessity. 42 U.S.C.S. § 12112(b)(4)(B); 29 C.F.R. § 1630.14(c). Specifically, the ADA permits employers to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. pt. 1630, app. § 1630.14(c). Determining whether a medical inquiry is job related and consistent with business necessity must be analyzed in an overall context rather than considering each individual inquiry in isolation. Go To Headnote

Ketcher v. Wal-Mart Stores, Inc., 122 F. Supp. 2d 747, 12 Am. Disabilities Cas. (BNA) 79, 2000 U.S. Dist. LEXIS 17641 (S.D. Tex. 2000).

Overview: Where plaintiff sued for disability discrimination, plaintiff failed to prove prima facie case that he was qualified for another job, that defendant knew of his interest, and that he was denied job because of a disability.

• •The regulations established by the Department of Labor provide that an employer may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity and may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Go To Headnote
• •The appendix to 29 C.F.R. § 1630.14(c) states that this provision permits employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. Go To Headnote

Ditullio v. Village of Massena, 81 F. Supp. 2d 397, 11 Am. Disabilities Cas. (BNA) 341, 2000 U.S. Dist. LEXIS 804 (N.D.N.Y. 2000).

Overview: Defendant entitled to summary judgment on ADA claim where plaintiff’s impairment did not substantially limit a major life activity and defendant did not perceive plaintiff as being so limited.

• •For an employer’s request for a medical exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job. An employee’s behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions. The regulations similarly provide that an employer may require a medical examination that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). Medical examinations must be restricted to discovering whether the employee can continue to fulfill the essential functions of the job. Go To Headnote

Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465, 1997 U.S. Dist. LEXIS 21178 (N.D. Tex. 1997).

Overview: The employee’s ADA action failed as a matter of law because she failed to raise a genuine issue of fact as to whether her impairment substantially limited a major life activity.

• •The Americans with Disabilities Act allows employers to inquire into an employee’s ability to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(B); 29 C.F.R. § 1630.14(c). Go To Headnote

Armstrong v. Turner Indus., 4 Accom. Disabilities Dec. (CCH) ¶ -011, 950 F. Supp. 162, 4 Accom. Disabilities Dec. (CCH) P4-011, 7 Am. Disabilities Cas. (BNA) 875, 20 Am. Disabilities Dec. 237, 1996 U.S. Dist. LEXIS 19368 (M.D. La. 1996), aff'd, 5 Accom. Disabilities Dec. (CCH) ¶ -118, 141 F.3d 554, 5 Accom. Disabilities Dec. (CCH) P5-118, 8 Am. Disabilities Cas. (BNA) 118, 1998 U.S. App. LEXIS 9863 (5th Cir. 1998).

Overview: Company was entitled to summary judgment on job applicant’s ADA claim because there was no evidence that company regarded applicant as disabled. Company’s mere awareness of previous asbestos exposure was not sufficient to defeat summary judgment.

• •The Americans With Disabilities Act, 42 U.S.C.S. § 12101 et seq., also prohibits discrimination against qualified individuals with disabilities in regard to job application procedures. This prohibition includes medical examinations and inquiries. 42 U.S.C.S. § 12112(d)(1). An employer cannot conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. 42 U.S.C.S. § 12112(d)(2)(A). However, under certain conditions an employer may require a medical examination after an offer of employment has been made to an applicant and prior to the beginning of the employment duties. 42 U.S.C.S. § 12112(d)(3); 29 C.F.R. §§ 1630.13 and 1630.14. Go To Headnote

Grenier v. Cyanamid Plastics, Inc., 2 Accom. Disabilities Dec. (CCH) ¶ -137, 70 F.3d 667, 2 Accom. Disabilities Dec. (CCH) P2-137, 5 Am. Disabilities Cas. (BNA) 75, 13 Am. Disabilities Dec. 844, 1995 U.S. App. LEXIS 33254 (1st Cir. 1995).

Overview: The employer had the right to inquire into the employee’s ability to function effectively in the workplace, and requiring medical certification did not violate the Americans with Disabilities Act.

• •The regulations adopted under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., by the Equal Employment Opportunity Commission provide that an employer may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. 29 C.F.R. § 1630.14(a). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Coverage & Definitions: Covered Entities 

Jackson v. Lake County, 14 Am. Disabilities Cas. (BNA) 1609, 2003 U.S. Dist. LEXIS 16244 (N.D. Ill. Sept. 15, 2003).

Jackson v. Lake County, 14 Am. Disabilities Cas. (BNA) 1609, 2003 U.S. Dist. LEXIS 16244 (N.D. Ill. Sept. 15, 2003).

Overview: Even though he was not disabled, an employee could maintain a claim under the ADA because it was illogical to allow an employer to require the employee to prove that he was not disabled by submitting to a mental examination.

• •42 U.S.C.S. § 12112(d)(2) provides that, with respect to job applicants who have not received an offer, an employer may only make preemployment inquiries of an applicant’s ability to perform job-related functions, but not into whether the applicant is disabled. Under 42 U.S.C.S. § 12112(d)(3), which applies to all an applicant who has received an offer of employment but who has not yet started work, the employer may require a medical examination and make an offer of employment conditional on the results of such examination so long as (1) all employees are subject to such inquiry; (2) information obtained is maintained on separate forms and in separate files and treated as confidential; and (3) the results of the examination are only used in accordance with this subchapter. 29 C.F.R. § 1630.14(b). As for the third requirement that the results are only used in accordance with this subchapter, this means as long as the employer does not discriminate on the basis of the applicant’s disability. Finally, under 42 U.S.C.S. § 12112(d)(4), which applies to employees, the employer may not inquire into whether an employee suffers from a disability unless any such examination is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). These rules under 42 U.S.C.S. § 12112(d) apply to psychiatric and mental evaluations as well as medical examinations. Go To Headnote

EEOC v. Texas Bus Lines, 2 Accom. Disabilities Dec. (CCH) ¶ -309, 923 F. Supp. 965, 2 Accom. Disabilities Dec. (CCH) P2-309, 5 Am. Disabilities Cas. (BNA) 878, 17 Am. Disabilities Dec. 1375, 1996 U.S. Dist. LEXIS 8800 (S.D. Tex. 1996).

Overview: Qualified job applicant’s obesity, without additional medical problems, was not a disability as defined by Americans with Disabilities Act, under which employer was liable for third-party physician’s discriminatory rejection of obese applicant.

• •The regulations promulgated under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. 1211 et seq., specifically provide that the results of a medical examination shall not be used for any purpose inconsistent with the ADA. 29 C.F.R. § 1630.14(b)(2). Additionally, the ADA prohibits employers from participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by the ADA. 42 U.S.C.S. § 12112(b)(2). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Coverage & Definitions: Disabilities: General Overview 

Adair v. City of Muskogee, 823 F.3d 1297, 32 Am. Disabilities Cas. (BNA) 1409, 41 I.E.R. Cas. (BNA) 734, 2016 U.S. App. LEXIS 9636 (10th Cir. 2016).

Adair v. City of Muskogee, 823 F.3d 1297, 32 Am. Disabilities Cas. (BNA) 1409, 41 I.E.R. Cas. (BNA) 734, 2016 U.S. App. LEXIS 9636 (10th Cir. 2016).

Overview: In a former firefighter’s suit asserting constructive discharge and discrimination, the court affirmed summary judgment to the city because the former firefighter could not show that he was qualified to meet the physical demands required following his work related injury or that the city could reasonably accommodate his lifting restrictions.

• •As the Second Circuit has noted, relatively little case law concerns the proper interpretation of business necessity in the context of a medical examination. The Equal Employment Opportunity Commission has interpreted the Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C.S. § 12112(d)(4)(B), as permitting an employer to make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Summarizing existing precedent on the subject, the Second Circuit has explained that courts will readily find a business necessity if an employer can demonstrate that a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, nondiscriminatory reasons to doubt the employee’s capacity to perform his or her duties. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Coverage & Definitions: Disabilities: Alcohol & Drug Abuse 

Flynn v. Raytheon Co., 2 Accom. Disabilities Dec. (CCH) ¶ -010, 868 F. Supp. 383, 2 Accom. Disabilities Dec. (CCH) P2-010, 3 Am. Disabilities Cas. (BNA) 1495, 7 Am. Disabilities Dec. 415, 1994 U.S. Dist. LEXIS 16209 (D. Mass. 1994).

Flynn v. Raytheon Co., 2 Accom. Disabilities Dec. (CCH) ¶ -010, 868 F. Supp. 383, 2 Accom. Disabilities Dec. (CCH) P2-010, 3 Am. Disabilities Cas. (BNA) 1495, 7 Am. Disabilities Dec. 415, 1994 U.S. Dist. LEXIS 16209 (D. Mass. 1994).

Overview: Because the employee alleged that the employer selectively enforced its termination policy against alcoholics who reported to work intoxicated, the employee stated a cause of action upon which relief could be granted, precluding dismissal.

• •29 C.F.R § 1630.15(f) (1993), entitled “Additional defenses,” states that it may be a defense to a charge of discrimination under this part that the alleged discriminatory action is specifically permitted by 29 C.F.R. §§ 1630.14 or 1630.16. Moreover, under 29 C.F.R. § 1630.16(b)(2), a covered entity may require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace. The section goes on to say at 29 C.F.R. § 1630.16(b)(4) that employers may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the employer holds its other employees, even if any unsatisfactory performance or behavior is related to the employee’s drug use or alcoholism. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Coverage & Definitions: Discriminatory Conduct 

Chi. Reg'l Council of Carpenters v. Berglund Constr. Co., 28 Am. Disabilities Cas. (BNA) 1848, 2013 U.S. Dist. LEXIS 178387 (N.D. Ill. Dec. 11, 2013).

Chi. Reg'l Council of Carpenters v. Berglund Constr. Co., 28 Am. Disabilities Cas. (BNA) 1848, 2013 U.S. Dist. LEXIS 178387 (N.D. Ill. Dec. 11, 2013).

Overview: In this ADA action, the employer was granted summary judgment because the undisputed evidence showed that the rehabilitation center’s evaluation was “job-related and consistent with business necessity.”

• •42 U.S.C.S. § 12112(d)(2) bars an employer from conducting a medical examination or making inquiries of a job applicant as to whether he is an individual with a disability. However, an employer may, after offering an applicant a job, require him to take a medical exam and make the job offer contingent on his passing it, as long as the employer requires all entering employees in the same job category to do so as well. 42 U.S.C.S. § 12112(d)(2), (3); 29 C.F.R. § 1630.14(b). Go To Headnote

Indergard v. Georgia-Pacific Corp., 14 Accom. Disabilities Dec. (CCH) ¶ 4-013, 582 F.3d 1049, 14 Accom. Disabilities Dec. (CCH) P14-013, 22 Am. Disabilities Cas. (BNA) 660, 2009 U.S. App. LEXIS 21312 (9th Cir. 2009).

Overview: Where an employer required an employee to participate in a physical capacity evaluation (PCE) before returning to work from medical leave, the employee’s ADA disability discrimination claim survived summary judgment because the PCE was a medical examination within the meaning of 42 U.S.C.S. § 12112(d)(4)(A).

• •Under the Americans with Disabilities Act (ADA), an employer may not require a current employee to undergo a medical examination unless the examination is shown to be job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(4)(A). This section applies to all employees, whether or not they are disabled under the ADA. The implementing regulations impose the same restriction, but state that an employer may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Go To Headnote

Adeyemi v. District of Columbia, 13 Accom. Disabilities Dec. (CCH) ¶ 3-119, 525 F.3d 1222, 381 U.S. App. D.C. 128, 13 Accom. Disabilities Dec. (CCH) P13-119, 20 Am. Disabilities Cas. (BNA) 993, 2008 U.S. App. LEXIS 10523 (D.C. Cir.), cert. denied, 555 U.S. 1036, 129 S. Ct. 606, 172 L. Ed. 2d 464, 2008 U.S. LEXIS 8384 (2008).

Overview: District of Columbia was properly granted summary judgment in an employment discrimination case of a deaf applicant because the District asserted a legitimate, non-discrimnatory reason for selecting other candidates and under 42 U.S.C.S. § 12112 of the ADA, evidence of comparative qualifications did not raise inference of sufficient discrimination.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., expressly permits employers to make preemployment inquiries into the ability of an applicant to perform job-related functions. 42 U.S.C.S. § 12112(d)(2)(B); 29 C.F.R. § 1630.14(a); 29 C.F.R. Pt. 1630, app. § 1630. Go To Headnote

Metzenbaum v. John Carroll Univ., 987 F. Supp. 610, 1997 U.S. Dist. LEXIS 17340 (N.D. Ohio 1997).

Overview: In an employment discrimination case, an employee’s action was barred under the doctrine of res judicata because a prior state action that involved the same parties and the same facts, had been dismissed with prejudice, in favor of employer.

• •The Americans with Disability Act permits employers to make inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his job. 42 U.S.C.S. § 12112(d)(4), 29 C.F.R. § 1630.14(c). Moreover, an employer is entitled to set qualification standards for specific jobs. The regulations define “qualification standard” as the personal and professional attributes established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired. 29 C.F.R. § 1630.2(q). The “qualification standard” may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. 29 C.F.R. § 1630.15(b)(2). Go To Headnote

Flynn v. Raytheon Co., 2 Accom. Disabilities Dec. (CCH) ¶ -010, 868 F. Supp. 383, 2 Accom. Disabilities Dec. (CCH) P2-010, 3 Am. Disabilities Cas. (BNA) 1495, 7 Am. Disabilities Dec. 415, 1994 U.S. Dist. LEXIS 16209 (D. Mass. 1994).

Overview: Because the employee alleged that the employer selectively enforced its termination policy against alcoholics who reported to work intoxicated, the employee stated a cause of action upon which relief could be granted, precluding dismissal.

• •29 C.F.R § 1630.15(f) (1993), entitled “Additional defenses,” states that it may be a defense to a charge of discrimination under this part that the alleged discriminatory action is specifically permitted by 29 C.F.R. §§ 1630.14 or 1630.16. Moreover, under 29 C.F.R. § 1630.16(b)(2), a covered entity may require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace. The section goes on to say at 29 C.F.R. § 1630.16(b)(4) that employers may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the employer holds its other employees, even if any unsatisfactory performance or behavior is related to the employee’s drug use or alcoholism. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Coverage & Definitions: Qualified Individuals With a Disability 

Tice v. Ctr. Area Transp. Auth., 9 Accom. Disabilities Dec. (CCH) ¶ -010, 247 F.3d 506, 9 Accom. Disabilities Dec. (CCH) P9-010, 11 Am. Disabilities Cas. (BNA) 1185, 2001 U.S. App. LEXIS 7405 (3d Cir. 2001).

Tice v. Ctr. Area Transp. Auth., 9 Accom. Disabilities Dec. (CCH) ¶ -010, 247 F.3d 506, 9 Accom. Disabilities Dec. (CCH) P9-010, 11 Am. Disabilities Cas. (BNA) 1185, 2001 U.S. App. LEXIS 7405 (3d Cir. 2001).

Overview: Dismissal of plaintiff’s ADA claims was affirmed where his former employer’s request for a medical examination, standing alone, was not sufficient to establish that the defendant “regarded” the plaintiff as disabled.

• •Under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). Under these standards, a request for a medical examination that complies with the statutory restrictions will never, in the absence of other evidence, be sufficient to demonstrate that an employer “regarded” the employee as substantially limited in a major life activity, simply because an examination that is “job-related” and “consistent with business necessity” must, at minimum, be limited to an evaluation of the employee’s condition only to the extent necessary under the circumstances to establish the employee’s fitness for the work at issue. A request for such an appropriately-tailored examination only establishes that the employer harbors doubts (not certainties) with respect to an employee’s ability to perform a particular job. Doubts alone do not demonstrate that the employee was held in any particular regard. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Defenses & Exceptions: Business Necessity 

EEOC v. C.R. Eng., Inc., 14 Accom. Disabilities Dec. (CCH) ¶ 4-197, 644 F.3d 1028, 14 Accom. Disabilities Dec. (CCH) P14-197, 24 Am. Disabilities Cas. (BNA) 897, 2011 U.S. App. LEXIS 8971 (10th Cir. 2011).

EEOC v. C.R. Eng., Inc., 14 Accom. Disabilities Dec. (CCH) ¶ 4-197, 644 F.3d 1028, 14 Accom. Disabilities Dec. (CCH) P14-197, 24 Am. Disabilities Cas. (BNA) 897, 2011 U.S. App. LEXIS 8971 (10th Cir. 2011).

Overview: A former employer was properly awarded summary judgment in a former employee’s ADA lawsuit because the employee failed to show that he was terminated from his truck driver’s job and his driver-trainer job due to his condition as HIV positive, rather than due to his actions while training a driver and his unapproved return home while on assignment.

• •Any information obtained through a post-offer entrance medical examination under 42 U.S.C.S. § 12112(d)(3) or a voluntary medical examination or inquiry under 42 U.S.C.S. § 12112(d)(4) must be treated as a confidential medical record. 42 U.S.C.S. §§ 12112(d)(3)(B), (d)(4)(C); 29 C.F.R. § 1630.14(c)(1) provides that information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, subject to limited exceptions. Disclosure of confidential information obtained through an authorized medical examination or inquiry would constitute a violation of § 12112(d) and could give rise to a claim under the Americans with Disabilities Act (ADA). 42 U.S.C.S. § 12112(d)(3)(C) states that the results of an examination conducted under the authority of 42 U.S.C.S. §§ 12112(d)(3) or (d)(4) must be used only in accordance with this title. The ADA prohibits an employer from disclosing confidential medical information about an ex-employee. Go To Headnote

Adeyemi v. District of Columbia, 13 Accom. Disabilities Dec. (CCH) ¶ 3-119, 525 F.3d 1222, 381 U.S. App. D.C. 128, 13 Accom. Disabilities Dec. (CCH) P13-119, 20 Am. Disabilities Cas. (BNA) 993, 2008 U.S. App. LEXIS 10523 (D.C. Cir.), cert. denied, 555 U.S. 1036, 129 S. Ct. 606, 172 L. Ed. 2d 464, 2008 U.S. LEXIS 8384 (2008).

Overview: District of Columbia was properly granted summary judgment in an employment discrimination case of a deaf applicant because the District asserted a legitimate, non-discrimnatory reason for selecting other candidates and under 42 U.S.C.S. § 12112 of the ADA, evidence of comparative qualifications did not raise inference of sufficient discrimination.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., expressly permits employers to make preemployment inquiries into the ability of an applicant to perform job-related functions. 42 U.S.C.S. § 12112(d)(2)(B); 29 C.F.R. § 1630.14(a); 29 C.F.R. Pt. 1630, app. § 1630. Go To Headnote

Denman v. Davey Tree Expert Co., 266 Fed. Appx. 377, 2007 FED App. 0881N, 20 Am. Disabilities Cas. (BNA) 105, 2007 U.S. App. LEXIS 30048 (6th Cir. 2007).

Overview: Summary judgment for employer was proper in employee’s action under ADA; employer’s requests for medical information on bipolar disorder and for an independent medical examination were job-related and consistent with business necessity under 42 U.S.C.S. § 12112(d)(4)(A) because attendance was an essential function of employee’s job as foreman.

• •An employer’s request for a medical examination is job-related and consistent with business necessity under 42 U.S.C.S. § 12112(d)(4)(A) when: (1) the employee requests an accommodation; (2) the employee’s ability to perform the essential functions of the job is impaired; or (3) the employee poses a direct threat to himself or others. The Americans with Disabilities Act permits employers to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. § 1630.14(c). Health problems that significantly affect an employee’s performance of essential job functions justify ordering a physical examination. The determination that an individual poses a “direct threat” shall be based on a reasonable medical judgment. 29 C.F.R. § 1630.2(r). Go To Headnote

EEOC v. Teamsters Local 804, 11 Accom. Disabilities Dec. (CCH) ¶ 1-195, 11 Accom. Disabilities Dec. (CCH) P11-195, 16 Am. Disabilities Cas. (BNA) 307, 2004 U.S. Dist. LEXIS 22452 (S.D.N.Y. Nov. 4, 2004).

Overview: EEOC may have been able to prove that the employer obtained John Doe’s HIV status information through inquiries in connection with use of sick time for medical appointments and that the union obtained same. EEOCs complaint survived motion to dismiss.

• •Title I of the Americans with Disabilities Act of 1990 (ADA) outlines three circumstances under which a covered entity must protect the confidentiality of an employee’s medical condition or history. 42 U.S.C.S. § 12112(d). Specifically, a covered entity is required to keep medical information confidential if it is obtained when: (1) the covered entity requires an individual to whom employment has been extended to undergo a pre-employment medical exam prior to the commencement of employ, 42 U.S.C.S. § 12112(d)(3); (2) the covered entity requires a current employee to undergo a medical examination or respond to an inquiry that is job-related and consistent with business necessity, 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); or (3) the covered entity conducts a voluntary medical examination that is part of an employee health program available at the work site, 42 U.S.C.S. § 12112(d)(4)(B). Go To Headnote

Jackson v. Lake County, 14 Am. Disabilities Cas. (BNA) 1609, 2003 U.S. Dist. LEXIS 16244 (N.D. Ill. Sept. 15, 2003).

Overview: Even though he was not disabled, an employee could maintain a claim under the ADA because it was illogical to allow an employer to require the employee to prove that he was not disabled by submitting to a mental examination.

• •42 U.S.C.S. § 12112(d)(2) provides that, with respect to job applicants who have not received an offer, an employer may only make preemployment inquiries of an applicant’s ability to perform job-related functions, but not into whether the applicant is disabled. Under 42 U.S.C.S. § 12112(d)(3), which applies to all an applicant who has received an offer of employment but who has not yet started work, the employer may require a medical examination and make an offer of employment conditional on the results of such examination so long as (1) all employees are subject to such inquiry; (2) information obtained is maintained on separate forms and in separate files and treated as confidential; and (3) the results of the examination are only used in accordance with this subchapter. 29 C.F.R. § 1630.14(b). As for the third requirement that the results are only used in accordance with this subchapter, this means as long as the employer does not discriminate on the basis of the applicant’s disability. Finally, under 42 U.S.C.S. § 12112(d)(4), which applies to employees, the employer may not inquire into whether an employee suffers from a disability unless any such examination is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). These rules under 42 U.S.C.S. § 12112(d) apply to psychiatric and mental evaluations as well as medical examinations. Go To Headnote

Dean v. Philip Morris USA Inc., 15 Am. Disabilities Cas. (BNA) 369, 2003 U.S. Dist. LEXIS 13035 (M.D.N.C. July 29, 2003).

Overview: Where the employee was transferred to a new position due to her medical condition and allegedly was subject to racial intimidation there, the court did not find violations of the ADA, Title VII, or retaliation.

• •According to Equal Employment Opportunity Commission regulations, an employer may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). This court and many others have held that a request for a medical examination, without more, is not sufficient to establish that a plaintiff is regarded as disabled. Among the factors which a court should evaluate in determining whether a request for a physical examination can establish that an employee was regarded as disabled are whether the examination was limited to the condition which gave rise to the examination, and whether the employer had a reasonable basis to request the examination. Go To Headnote

Hill v. Pfizer, Inc., 266 F. Supp. 2d 352, 14 Am. Disabilities Cas. (BNA) 1865, 2003 U.S. Dist. LEXIS 9300 (D. Conn. 2003).

Overview: An employee may have been regarded as disabled in a major life activity where a decision to rescind a job offer was made solely on the basis of an employer’s doctor’s opinion that the employee was unable to perform essential functions of the job.

• •Under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., an employer may withdraw a conditional job offer for reasons that are job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(3)(c); 29 C.F.R. § 1630.14(b)(3). Moreover, the employer may only withdraw the conditional offer if performance of the essential job functions cannot be accomplished with reasonable accommodation. 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Terry v. City of Greensboro, 14 Am. Disabilities Cas. (BNA) 1494, 2003 U.S. Dist. LEXIS 869 (M.D.N.C. Jan. 17, 2003).

Overview: Where a police department rehired an injured police officer as telephone response technician after a medical exam, officer did not establish ADA claim; as technician position was within department, officer was not precluded from broad range of jobs.

• •According to the Equal Employment Opportunity Commission’s (EEOC) regulations, evaluations ordered by an employer to determine whether an employee can fulfill the essential functions of the job are appropriate. 29 C.F.R. § 1630.14(c). Further, an employer’s mandate of a medical evaluation conducted after an on-the-job injury is job related and a business necessity pursuant to 42 U.S.C.S. § 12112(d)(4) of the Americans With Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq. Go To Headnote

Conrad v. Bd. of Johnson County Comm'rs, 237 F. Supp. 2d 1204, 14 Am. Disabilities Cas. (BNA) 936, 2002 U.S. Dist. LEXIS 21610 (D. Kan. 2002).

Overview: Employee’s ADEA claim failed; court found that the employee had submitted nothing more than speculation in support of her claim that the employer’s stated reasons for her termination were pretextual and that age played a role in her termination.

• •Generally speaking, the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12111 et seq., prohibits employers from inquiring as to whether an employee has a disability or inquiring as to the nature and severity of any disability. 42 U.S.C.S. § 12112(d)(4)(A). This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. An employer is allowed, however, to make medical inquiries of employees in certain situations. A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). A covered entity may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). The Equal Employment Opportunity Commission interprets this regulation as permitting employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. pt. 1630, app. § 1630.13(b). An employer’s request that an employee undergo a medical examination must be supported by evidence that would cause a reasonable person to inquire as to whether an employee is still capable of performing his job. These rules apply to psychiatric and mental evaluations as well as medical examinations. Go To Headnote

Johnson v. Eastchester Union Free Sch. Dist., 211 F. Supp. 2d 514, 2002 U.S. Dist. LEXIS 13384 (S.D.N.Y. 2002).

Overview: No discrimination was shown since the change in the location and hours of the employee’s job did not constitute an adverse employment action, and there was no evidence of any discriminatory animus based on age.

• •An employer may require a medical examination of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). An employer must demonstrate some reasonable basis for concluding that the inquiry was necessary. The employer must have a genuine reason to doubt that an employee can perform job-related functions. Go To Headnote

Garrison v. Baker Hughes Oilfield Operations, Inc., 10 Accom. Disabilities Dec. (CCH) ¶ 0-034, 287 F.3d 955, 10 Accom. Disabilities Dec. (CCH) P10-034, 12 Am. Disabilities Cas. (BNA) 1825, 2002 U.S. App. LEXIS 7352 (10th Cir. 2002).

Overview: While the employee admitted he falsely represented his medical history, it was within the province of the jury to ascribe withdrawal of the job offer to discriminatory use of medical exam results in violation of the ADA.

• •Under 42 U.S.C.S. § 12112(d)(3)(C), an employer’s reasons for withdrawing a conditional job offer must be job-related and consistent with business necessity. 29 C.F.R. § 1630.14(b)(3). Moreover, an employer may only withdraw the conditional job offer if performance of the essential job functions cannot be accomplished with reasonable accommodation. Go To Headnote

Eustace v. S. Buffalo Mercy Hosp., 2001 U.S. Dist. LEXIS 16556 (W.D.N.Y. Oct. 4, 2001), aff'd, 36 Fed. Appx. 673, 2002 U.S. App. LEXIS 11228 (2d Cir. 2002).

Overview: The circumstantial evidence put forth by the employee did not meet her burden to establish a genuine issue of material fact as to whether she was perceived as being disabled.

• •The United States Court of Appeals for the Second Circuit has held that requiring someone whom the employer feels might not be physically capable of performing the tasks required for the job to submit to a physical examination does not mean that the employee is regarded as having such an impairment under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq. Other circuit courts of appeals have held that requesting an employee to take psychological exams does not prove that the employers perceived their employee as having a psychic disability. In addition, 29 C.F.R. § 1630.14(c) allows an employer to require medical examinations that are job-related and consistent with business necessity. Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 9 Accom. Disabilities Dec. (CCH) ¶ -242, 183 F. Supp. 2d 1292, 9 Accom. Disabilities Dec. (CCH) P9-242, 12 Am. Disabilities Cas. (BNA) 1363, 2001 U.S. Dist. LEXIS 22544 (D. Kan. 2001).

Overview: Claim of improper medical inquiry under ADA was not subject to disparate impact analysis. After employee had stroke, and was under work restrictions, employer properly attempted to determine whether employee could perform outside sales job.

• •Generally, the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., ADA prohibits employers from making inquiries as to whether an employee is an individual with a disability or as to the nature and severity of any such disability. 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.13(b). This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. 29 C.F.R. pt. 1630, app. § 1630.13 (b). An employer is allowed, however, to make medical inquiries of employees as long as such inquiries are job related and consistent with business necessity. 42 U.S.C.S. § 12112(b)(4)(B); 29 C.F.R. § 1630.14(c). Specifically, the ADA permits employers to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. pt. 1630, app. § 1630.14(c). Determining whether a medical inquiry is job related and consistent with business necessity must be analyzed in an overall context rather than considering each individual inquiry in isolation. Go To Headnote
• •The regulations implementing the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., allow employers to make medical inquiries regarding any reasonable accommodations that may be required to assist a qualified individual with a disability perform a job. 29 C.F.R. Pt. 1630, App. § 1630.14 (c). Go To Headnote

Ballard v. Healthsouth Corp., 147 F. Supp. 2d 529, 11 Am. Disabilities Cas. (BNA) 1717, 2001 U.S. Dist. LEXIS 7518 (N.D. Tex. 2001).

Overview: Summary judgment was granted in an ADA action. The employer was not required to keep the plaintiff’s medical condition a secret and the work environment which plaintiff complained of did not rise to the level of a hostile work environment.

• •There are three circumstances under the Americans with Disabilities Act in which an employer must protect the confidentiality of medical information obtained about its employees. An employer may require new employees to undergo a medical exam under certain circumstances and provided that information obtained regarding the medical condition or history of the applicant is treated as a confidential medical record. 42 U.S.C.S. § 12112(d)(3). Under 42 U.S.C.S. § 12112(d)(4)(A), an employer may require an employee to undergo a medical exam if the exam is shown to be job-related and consistent with business necessity. An employer must keep information obtained pursuant to such an exam confidential. 29 C.F.R. § 1630.14 (2000). Finally, under 42 U.S.C.S. § 12112(d)(4)(B), an employer may conduct voluntary medical examinations, which are part of an employee health program available to employees, but the employer must treat information obtained as confidential. Go To Headnote

Tice v. Ctr. Area Transp. Auth., 9 Accom. Disabilities Dec. (CCH) ¶ -010, 247 F.3d 506, 9 Accom. Disabilities Dec. (CCH) P9-010, 11 Am. Disabilities Cas. (BNA) 1185, 2001 U.S. App. LEXIS 7405 (3d Cir. 2001).

Overview: Dismissal of plaintiff’s ADA claims was affirmed where his former employer’s request for a medical examination, standing alone, was not sufficient to establish that the defendant “regarded” the plaintiff as disabled.

• •Under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). Under these standards, a request for a medical examination that complies with the statutory restrictions will never, in the absence of other evidence, be sufficient to demonstrate that an employer “regarded” the employee as substantially limited in a major life activity, simply because an examination that is “job-related” and “consistent with business necessity” must, at minimum, be limited to an evaluation of the employee’s condition only to the extent necessary under the circumstances to establish the employee’s fitness for the work at issue. A request for such an appropriately-tailored examination only establishes that the employer harbors doubts (not certainties) with respect to an employee’s ability to perform a particular job. Doubts alone do not demonstrate that the employee was held in any particular regard. Go To Headnote

Farmiloe v. Ford Motor Co., 277 F. Supp. 2d 778, 2001 U.S. Dist. LEXIS 25365 (N.D. Ohio 2001), adopted, 277 F. Supp. 2d 778, 14 Am. Disabilities Cas. (BNA) 1354, 2002 U.S. Dist. LEXIS 26643 (N.D. Ohio 2002).

Overview: Where an employee was most like a post-offer pre-employment applicant, an employer did not provide enough information as to whether, inter alia, it did not request more information from him than it did of other returning disability retirees.

• •A medical examination of a post-offer preemployment applicant is not required to be job-related and consistent with business necessity. However, if an employer withdraws an offer of employment because the medical examination reveals that the employee does not satisfy certain employment criteria, either the exclusionary criteria may not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, or they must be job-related and consistent with business necessity. 29 C.F.R. § 1630.14(b). Go To Headnote

Ketcher v. Wal-Mart Stores, Inc., 122 F. Supp. 2d 747, 12 Am. Disabilities Cas. (BNA) 79, 2000 U.S. Dist. LEXIS 17641 (S.D. Tex. 2000).

Overview: Where plaintiff sued for disability discrimination, plaintiff failed to prove prima facie case that he was qualified for another job, that defendant knew of his interest, and that he was denied job because of a disability.

• •The regulations established by the Department of Labor provide that an employer may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity and may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 95 F. Supp. 2d 1171, 12 Am. Disabilities Cas. (BNA) 1348, 2000 U.S. Dist. LEXIS 6272 (D. Kan. 2000).

Overview: Employee who was receiving long-term disability and Social Security disability benefits could not sustain action against employer for disability-based discrimination or harassment, as she could not perform essential job functions.

• •The Americans with Disabilities Act (ADA) permits employers or other covered entities to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. § 1630.14(c). Go To Headnote

Fritsch v. City of Chula Vista, 11 Am. Disabilities Cas. (BNA) 273, 2000 U.S. Dist. LEXIS 14820 (S.D. Cal. Feb. 17, 2000).

Overview: An employee’s Americans with Disabilities Act action following her termination for failing to submit to a psychological evaluation was dismissed where the evaluation was job related and necessary.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., permits an employer to require a current employee to submit to a medical examination only if the employer can prove that it is inquiring into the employee’s ability to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(A), (B); 29 C.F.R. § 1630.14(c). Specifically, the employer must demonstrate that the request for a medical examination is job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(4)(A). This protection is available to every employee, regardless of whether she is a qualified individual with a disability. The need for the examination may be triggered by some evidence of problems related to job performance or safety. Go To Headnote

Ditullio v. Village of Massena, 81 F. Supp. 2d 397, 11 Am. Disabilities Cas. (BNA) 341, 2000 U.S. Dist. LEXIS 804 (N.D.N.Y. 2000).

Overview: Defendant entitled to summary judgment on ADA claim where plaintiff’s impairment did not substantially limit a major life activity and defendant did not perceive plaintiff as being so limited.

• •For an employer’s request for a medical exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job. An employee’s behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions. The regulations similarly provide that an employer may require a medical examination that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). Medical examinations must be restricted to discovering whether the employee can continue to fulfill the essential functions of the job. Go To Headnote

Johnson v. Goodwill Indus., 1998 U.S. Dist. LEXIS 21040 (E.D.N.C. Dec. 16, 1998).

Overview: An ex-employee’s opinion that she was able to perform the duties of her job could not bar an employer’s right to request a fitness for duty exam under the American with Disabilities Act and refusal to take such exam was grounds for termination.

• •It is undisputed that the Americans With Disabilities Act (ADA) authorizes employers to require medical examinations which are job-related and consistent with business necessity, 42 U.S.C.S.§ 12112(d)(4)(A). The ADA also expressly makes acceptable medical examinations and inquiries which evaluate the ability of an employee to perform job-related functions, 42 U.S.C.S.§ 12112(d)(4)(B). Additionally, the regulations promulgated in accordance with the ADA state that an employer may require a medical examination and/or inquiry of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions, 29 C.F.R. § 1630.14(c). Employers may also make inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. Go To Headnote

Miller v. City of Springfield, 146 F.3d 612, 8 Am. Disabilities Cas. (BNA) 321, 1998 U.S. App. LEXIS 13385 (8th Cir. 1998), reh'g, en banc, denied, 1998 U.S. App. LEXIS 20523 (8th Cir. July 30, 1998).

Overview: The district court properly entered judgment in favor of city and its employees because an applicant, denied a position as a police recruit for failure to pass psychological exam, presented no evidence that they regarded her as disabled.

• •29 C.F.R. § 1630.14(b)(3) provides: Medical examinations conducted in accordance with this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity. Go To Headnote

Malkowski v. PTC Capital Corp., 1998 U.S. Dist. LEXIS 3592 (N.D. Ill. Mar. 16, 1998).

Overview: Allegations of age and disability discrimination resulting from an alleged constructive discharge from employment were not supported by sufficient evidence to withstand summary judgment motion.

• •Americans with Disabilities Act (ADA) regulations allow the employer to require a medical examination or make inquiries into an employee’s ability to perform his job. 29 C.F.R. 1630.14(c) (1997). These inquiries are necessary to help determine whether an accommodation might be required under the ADA. 29 C.F.R. Pt. 1630, App. at 367 (1997). Go To Headnote

Gonzales v. Sandoval County, 2 F. Supp. 2d 1442, 8 Am. Disabilities Cas. (BNA) 1337, 1998 U.S. Dist. LEXIS 6142 (D.N.M. 1998).

Overview: Although an employee was entitled to back pay for a county’s prohibited inquiry under the ADA, the employee was not entitled to front pay or reinstatement because there were hostilities and the employee did not suffer continuing discrimination.

• •Although a police officer must be physically fit to be certified under N.M. Stat. Ann. § 29-7-6(A)(5) (1997), state law can only require fitness to the extent permissible under the Americans with Disabilities Act, that is, the level of fitness necessary to perform the essential functions of the relevant position, with or without reasonable accommodations. U.S. Const. art. VI, cl. 2, 42 U.S.C.S. § 12111(8). N.M. Stat. Ann. § 29-7-6(A)(5) (1997) only supports a defense of job relatedness and business necessity for an inquiry that is necessary to ascertain this level of fitness or whether any shortcoming can be reasonably accommodated. 29 C.F.R. § 1630.14(c). Whether the inquiry was excepted cannot be controlled exclusively by the state statute, but depends upon the nature of the inquiry and the facts supporting any doubt that the employee can, or will continue to be able to, effectively perform the essential functions of his or her position. Go To Headnote

Norman-Bloodsaw v. Lawrence Berkeley Lab., 5 Accom. Disabilities Dec. (CCH) ¶ -011, 72 Empl. Prac. Dec. (CCH) ¶ 5201, 135 F.3d 1260, 98 Cal. Daily Op. Service 901, 98 D.A.R. 1215, 5 Accom. Disabilities Dec. (CCH) P5-011, 7 Am. Disabilities Cas. (BNA) 1395, 72 Empl. Prac. Dec. (CCH) P45201, 75 Fair Empl. Prac. Cas. (BNA) 1695, 13 I.E.R. Cas. (BNA) 1121, 1998 U.S. App. LEXIS 1398 (9th Cir. 1998).

Overview: Employees’ claims relating to secret testing of urine for certain conditions were not time-barred where it turned on material facts; summary judgment was inappropriate on claims of privacy, equal protection, and disability discrimination.

• •The Americans with Disabilities Act (ADA) creates three categories of medical inquiries and examinations by employers: (1) those conducted prior to an offer of employment (“preemployment” inquiries and examinations); (2) those conducted after an offer of employment has been made but prior to the commencement of employment duties (“employment entrance examinations”); and (3) those conducted at any point thereafter. Unlike examinations conducted at any other time, an employment entrance examination need not be concerned solely with the individual’s ability to perform job-related functions, 42 U.S.C.S. § 12112(d)(2); nor must it be job-related or consistent with business necessity, 42 U.S.C.S. § 12112(d)(4). Thus, the ADA imposes no restriction on the scope of entrance examinations; it only guarantees the confidentiality of the information gathered, 42 U.S.C.S. § 12112(d)(3)(B), and restricts the use to which an employer may put the information. 42 U.S.C.S. § 12112(d)(3)(C); 42 U.S.C.S. § 12112(d)(1); 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Stinson v. West Suburban Hosp. Medical Ctr., 1998 U.S. Dist. LEXIS 566 (N.D. Ill. Jan. 13, 1998).

Overview: The employer was entitled to establish reasonable qualifications for position as long as they were job-related and consistent with business necessity, and to condition an employment offer upon the results of a post-offer physical examination.

• •Ultimately, it is an employer’s prerogative to establish reasonable qualifications for a position. As long as the qualification standard is job-related for the position in question and consistent with business necessity, an employer is free to use reasonable qualifications to screen out potential employees. 42 U.S.C.S. § 12112(6). Not only is an employer at liberty to enforce its qualification standards, but it is entitled to make an applicant’s employment offer conditioned upon the results of a post-offer medical examination. 42 U.S.C.S. § 12112(d)(3), 29 C.F.R. § 1630.14(b). Go To Headnote

Deckert v. City of Ulysses, 1996 U.S. App. LEXIS 33969 (10th Cir. Dec. 31, 1996).

Overview: Police officer, who was diabetic, failed to show that city fired him due to his medical condition and city was not liable of discriminating against officer for a disability, when evidence showed that city fired him for good cause.

• •Section 12112(d)(4)(A) of the Americans with Disability Act allows an employer to require a medical exam when it is job-related and consistent with business necessity. As interpreted by the Equal Employment Opportunity Commission, section 12112(d)(4)(A) authorizes such an exam when an employee is having difficulty performing his or her job effectively. Technical Assistance Manual to 29 C.F.R. § 1630.14(c). Go To Headnote

Mobley v. Board of Regents, 924 F. Supp. 1179, 5 Am. Disabilities Cas. (BNA) 949, 16 Am. Disabilities Dec. 772, 1996 U.S. Dist. LEXIS 6198 (S.D. Ga.), vacated, 26 F. Supp. 2d 1374, 1996 U.S. Dist. LEXIS 22264 (S.D. Ga. 1996).

Overview: Summary judgment in favor of employer in employee’s disability discrimination suit was proper because there was no evidence that employee was disabled and employer did not regard her as disabled by taking preliminary steps to accommodate her.

• •Pursuant to 29 C.F.R. 1630.14(c), an employer covered by the Americans with Disabilities Act may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions. Go To Headnote

Deckert v. City of Ulysses, 4 Am. Disabilities Cas. (BNA) 1569, 12 Am. Disabilities Dec. 961, 1995 U.S. Dist. LEXIS 14526 (D. Kan. Sept. 6, 1995), aff'd, 1996 U.S. App. LEXIS 33969 (10th Cir. Dec. 31, 1996).

Overview: A diabetic police officer’s employment was not terminated in violation of the Americans with Disabilities Act. The employer did not violate the officer’s due process rights when it terminated his employment for non-discriminatory reasons.

• •The Americans with Disabilities Act of 1990 permits, pursuant to 42 U.S.C.S. § 12112(4)(f)(A) and 29 C.F.R. § 1630.14(c), medical examinations when it is a business necessity. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Defenses & Exceptions: Direct Threat 

Lent v. Goldman Sachs & Co., 1998 U.S. Dist. LEXIS 20371 (S.D.N.Y. Dec. 29, 1998).

Lent v. Goldman Sachs & Co., 1998 U.S. Dist. LEXIS 20371 (S.D.N.Y. Dec. 29, 1998).

Overview: Defendant investment bank was denied summary judgment, in a case where an epileptic alleged termination in violation of the Americans with Disabilities Act and state law, because issues existed for jury determination.

• •42 U.S.C.S. § 12112(d)(4)(A) permits employers to make inquiries where there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. pt. 1630.14(c), app. § 81 (1998). The Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., requirements may also be met when an employer can show that an employee will pose a direct threat to health and safety due to a medical condition. An inquiry may be necessary to help determine whether an accommodation might be required under the ADA. 29 C.F.R. pt. 1630, app. § 60 (1998). However, § 12112(d)(4)(A) serves to prevent inquiries that do not serve a legitimate business purpose. Go To Headnote

Metzenbaum v. John Carroll Univ., 987 F. Supp. 610, 1997 U.S. Dist. LEXIS 17340 (N.D. Ohio 1997).

Overview: In an employment discrimination case, an employee’s action was barred under the doctrine of res judicata because a prior state action that involved the same parties and the same facts, had been dismissed with prejudice, in favor of employer.

• •The Americans with Disability Act permits employers to make inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his job. 42 U.S.C.S. § 12112(d)(4), 29 C.F.R. § 1630.14(c). Moreover, an employer is entitled to set qualification standards for specific jobs. The regulations define “qualification standard” as the personal and professional attributes established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired. 29 C.F.R. § 1630.2(q). The “qualification standard” may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. 29 C.F.R. § 1630.15(b)(2). Go To Headnote

Bombrys v. City of Toledo, 1 Accom. Disabilities Dec. (CCH) ¶ -156, 849 F. Supp. 1210, 1 Accom. Disabilities Dec. (CCH) P1-156, 3 Am. Disabilities Cas. (BNA) 651, 6 Am. Disabilities Dec. 839, 1993 U.S. Dist. LEXIS 20178 (N.D. Ohio 1993).

Overview: City was permanently enjoined from disqualifying insulin-dependent diabetic from police officer position as candidate could perform duties with reasonable accommodation and blanket exclusion of members in particular class violated due process.

• •Before declining to hire a disabled individual due to that individual’s direct threat to others, the employer must determine, on an individualized basis, the: (1) nature, duration, and severity of the risk; (2) probability that the potential injury will actually occur; and (3) possibility that reasonable modifications of policies, practices, or procedures will mitigate the risk. 28 C.F.R. § 36.208(c). It is acceptable for an employer to conduct pre-employment inquiries into the abilities of disabled persons to perform job-related functions. 29 C.F.R. § 1630.14(a). Employers may ask the applicant to demonstrate how he or she would perform the job, with or without accommodation. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Employment Practices: General Overview 

Pimental v. Dartmouth-Hitchcock Clinic, 2002 DNH 221, 236 F. Supp. 2d 177, 13 Am. Disabilities Cas. (BNA) 1722, 2002 U.S. Dist. LEXIS 25822 (D.N.H. 2002).

Pimental v. Dartmouth-Hitchcock Clinic, 2002 DNH 221, 236 F. Supp. 2d 177, 13 Am. Disabilities Cas. (BNA) 1722, 2002 U.S. Dist. LEXIS 25822 (D.N.H. 2002).

Overview: Employee was found not to have been disabled under the Americans with Disabilities Act where, although she was treated for breast cancer, she did not suffer a substantial impairment of the life activity, and was not perceived as such.

• •29 C.F.R. § 1630.14 specifically authorizes employers to make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or to ask an applicant to describe or to demonstrate how, with or without accommodation, the applicant will be able to perform job-related functions. Go To Headnote

Garrison v. Baker Hughes Oilfield Operations, Inc., 10 Accom. Disabilities Dec. (CCH) ¶ 0-034, 287 F.3d 955, 10 Accom. Disabilities Dec. (CCH) P10-034, 12 Am. Disabilities Cas. (BNA) 1825, 2002 U.S. App. LEXIS 7352 (10th Cir. 2002).

Overview: While the employee admitted he falsely represented his medical history, it was within the province of the jury to ascribe withdrawal of the job offer to discriminatory use of medical exam results in violation of the ADA.

• •Under 42 U.S.C.S. § 12112(d)(3)(C), an employer’s reasons for withdrawing a conditional job offer must be job-related and consistent with business necessity. 29 C.F.R. § 1630.14(b)(3). Moreover, an employer may only withdraw the conditional job offer if performance of the essential job functions cannot be accomplished with reasonable accommodation. Go To Headnote

Covelli v. Nat'l Fuel Gas Distrib. Corp., 2001 U.S. Dist. LEXIS 23932 (W.D.N.Y. Dec. 6, 2001), aff'd, 49 Fed. Appx. 356, 2002 U.S. App. LEXIS 22566 (2d Cir. 2002).

Overview: An employee failed to present a prima facie case of disability discrimination because he did not establish that the employer perceived him as suffering from a disability within the meaning of the ADA.

• •An employer may require medical proof that an employee is capable of performing the essential functions of a position. 42 U.S.C.S. § 12112(d)(4). Where a plaintiff has previously requested accommodation of his disability for the same position, a defendant is not prohibited from requesting documentation from an appropriate medical professional concerning plaintiff’s condition. 29 C.F.R. § 1630.14(c). If an employer is factually mistaken about the extent of an employee’s impairment, and the employee or his agent is responsible for the mistake, the employer is not liable under the Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Employment Practices: Discharges & Failures to Hire 

Adeyemi v. District of Columbia, 13 Accom. Disabilities Dec. (CCH) ¶ 3-119, 525 F.3d 1222, 381 U.S. App. D.C. 128, 13 Accom. Disabilities Dec. (CCH) P13-119, 20 Am. Disabilities Cas. (BNA) 993, 2008 U.S. App. LEXIS 10523 (D.C. Cir.), cert. denied, 555 U.S. 1036, 129 S. Ct. 606, 172 L. Ed. 2d 464, 2008 U.S. LEXIS 8384 (2008).

Adeyemi v. District of Columbia, 13 Accom. Disabilities Dec. (CCH) ¶ 3-119, 525 F.3d 1222, 381 U.S. App. D.C. 128, 13 Accom. Disabilities Dec. (CCH) P13-119, 20 Am. Disabilities Cas. (BNA) 993, 2008 U.S. App. LEXIS 10523 (D.C. Cir.), cert. denied, 555 U.S. 1036, 129 S. Ct. 606, 172 L. Ed. 2d 464, 2008 U.S. LEXIS 8384 (2008).

Overview: District of Columbia was properly granted summary judgment in an employment discrimination case of a deaf applicant because the District asserted a legitimate, non-discrimnatory reason for selecting other candidates and under 42 U.S.C.S. § 12112 of the ADA, evidence of comparative qualifications did not raise inference of sufficient discrimination.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., expressly permits employers to make preemployment inquiries into the ability of an applicant to perform job-related functions. 42 U.S.C.S. § 12112(d)(2)(B); 29 C.F.R. § 1630.14(a); 29 C.F.R. Pt. 1630, app. § 1630. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Employment Practices: Examinations & Inquiries 

Sumler v. Univ. of Colo. Hosp. Auth., 790 Fed. Appx. 950, 2019 U.S. App. LEXIS 36293 (10th Cir. 2019).

Sumler v. Univ. of Colo. Hosp. Auth., 790 Fed. Appx. 950, 2019 U.S. App. LEXIS 36293 (10th Cir. 2019).

Overview: Hospital did not violate 42 U.S.C.S. ? 12112(d)(3) by requiring appellant to have an in-person visit with an occupational health physician after she received a job offer, as its concern that mental acuity could be compromised by her use of narcotic pain medications involved criteria that was job-related and consistent with business necessity.

• •The Americans with Disabilities Act (ADA) restricts employers from requiring medical inquiries and examinations for hiring decisions. 42 U.S.C.S. ? 12112(d). These restrictions vary among three categories: (1) pre-offer job applications, ? 12112(d)(2); (2) post-offer pre-employment examinations, ? 12112(d)(3); and (3) inquiries of current employees. ? 12112(d)(4). For individuals in the second category, an employer may condition an offer on the results of medical inquiries and examinations if they are required for all incoming employees. ? 12112(d)(3)(A); 29 C.F.R. ? 1630.14(b). And if the employer uses medical inquiries or examinations to screen out employees, the exclusionary criteria must be job-related and consistent with business necessity. ? 1630.14(b)(3). Go To Headnote

Hustvet v. Allina Health Sys., 18 Accom. Disabilities Dec. (CCH) ¶ 8-108, 910 F.3d 399, 18 Accom. Disabilities Dec. (CCH) P18-108, 2018 U.S. App. LEXIS 34467 (8th Cir. 2018).

Overview: In this ADA action, grant of summary judgment to employer was affirmed because there was insufficient evidence to support conclusion that employee’s chemical sensitivities or allergies substantially or materially limited her ability to perform major life activities where as she had never seen an allergy specialist.

• •42 U.S.C.S. § 12112(d)(3) generally permits an employer to make its offer of employment conditional upon the results of a medical examination (and/or inquiry) so long as certain conditions are met, such as that all employees are subjected to the examination (and/or inquiry) regardless of disability, the information is kept confidential, and the criteria used to screen employees are job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(3)(A)-(d)(3)(C); 29 C.F.R. § 1630.14(b). Minnesota law also expressly permits post-offer, pre-employment medical examinations that test for essential job-related abilities. Minn. Stat. § 363A.20, subdiv. 8. Go To Headnote

EEOC v. BNSF Ry. Co., 2018 U.S. App. LEXIS 24534 (9th Cir. Aug. 29, 2018), corrected, 2018 U.S. App. LEXIS 25851 (9th Cir. Sept. 12, 2018), sub. op., 18 Accom. Disabilities Dec. (CCH) ¶ 8-087, 902 F.3d 916, 18 Accom. Disabilities Dec. (CCH) P18-087, 2018 U.S. App. LEXIS 25852 (9th Cir. 2018).

Overview: Employer violated the ADA because it perceived an employee as having an impairment due to a prior injury, the employee was a qualified individual with a disability under the ADA, and the employer revoked a job offer after the employee was unable to comply with the employer’s demand that he submit to an MRI at his own cost prior to employment.

• •Unlike examinations conducted at any other time, an employment entrance examination need not be concerned solely with the individual’s ability to perform job-related functions, 42 U.S.C.S. § 12112(d)(2); nor must it be job-related or consistent with business necessity, § 12112(d)(4). However, these examinations must still be used in accord with the ADA and cannot violate the ADA’s generic disability prohibitions set forth in 42 U.S.C.S. § 12112(a). 42 U.S.C.S. § 12112(d)(1); 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Adair v. City of Muskogee, 823 F.3d 1297, 32 Am. Disabilities Cas. (BNA) 1409, 41 I.E.R. Cas. (BNA) 734, 2016 U.S. App. LEXIS 9636 (10th Cir. 2016).

Overview: In a former firefighter’s suit asserting constructive discharge and discrimination, the court affirmed summary judgment to the city because the former firefighter could not show that he was qualified to meet the physical demands required following his work related injury or that the city could reasonably accommodate his lifting restrictions.

• •As the Second Circuit has noted, relatively little case law concerns the proper interpretation of business necessity in the context of a medical examination. The Equal Employment Opportunity Commission has interpreted the Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C.S. § 12112(d)(4)(B), as permitting an employer to make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Summarizing existing precedent on the subject, the Second Circuit has explained that courts will readily find a business necessity if an employer can demonstrate that a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, nondiscriminatory reasons to doubt the employee’s capacity to perform his or her duties. Go To Headnote

Withers v. Johnson, 16 Accom. Disabilities Dec. (CCH) ¶ 6-066, 763 F.3d 998, 16 Accom. Disabilities Dec. (CCH) P16-066, 30 Am. Disabilities Cas. (BNA) 669, 23 Wage & Hour Cas. 2d (BNA) 383, 2014 U.S. App. LEXIS 15696 (8th Cir. 2014).

Overview: In this ADA action, the grant of summary judgment to the county and judge was affirmed because the employee failed to show that the judge violated the ADA regulations where the judge terminated the employee’s employment because the employee violated the county’s policy that he must immediately provide his supervisor with his medical release.

• •29 C.F.R. § 1630.14(c) permits an employer to require job-related medical examinations but forbids disclosure of examination records to non-supervisory staff. Go To Headnote

EEOC v. Am. Tool & Mold, Inc., 16 Accom. Disabilities Dec. (CCH) ¶ 6-029, 21 F. Supp. 3d 1268, 16 Accom. Disabilities Dec. (CCH) P16-029, 29 Am. Disabilities Cas. (BNA) 1431, 2014 U.S. Dist. LEXIS 71472 (M.D. Fla. 2014).

Overview: Where employer revoked conditional offer of employment after applicant revealed prior back surgery and medical screening company deemed him not fit for work, EEOC and applicant were entitled to summary judgment on disability discrimination claims under ADA and state law because, inter alia, employer regarded him as disabled.

• •While medical examinations conducted in accordance with 29 C.F.R. § 1630.14 do not have to be job-related and consistent with business necessity, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part. 29 C.F.R. § 1630.14(b)(3). Job-relatedness is used in analyzing the questions or subject matter contained in a test or criteria used by an employer as a basis for an employment decision, while business necessity, in context, is larger in scope and analyzes whether there is a business reason that makes necessary the use by an employer of a test or criteria for such a decision. Go To Headnote
• •29 C.F.R. § 1630.14(b)(3) requires “job-related” criteria consistent with a “business necessity.” Go To Headnote

Chi. Reg'l Council of Carpenters v. Berglund Constr. Co., 28 Am. Disabilities Cas. (BNA) 1848, 2013 U.S. Dist. LEXIS 178387 (N.D. Ill. Dec. 11, 2013).

Overview: In this ADA action, the employer was granted summary judgment because the undisputed evidence showed that the rehabilitation center’s evaluation was “job-related and consistent with business necessity.”

• •42 U.S.C.S. § 12112(d)(2) bars an employer from conducting a medical examination or making inquiries of a job applicant as to whether he is an individual with a disability. However, an employer may, after offering an applicant a job, require him to take a medical exam and make the job offer contingent on his passing it, as long as the employer requires all entering employees in the same job category to do so as well. 42 U.S.C.S. § 12112(d)(2), (3); 29 C.F.R. § 1630.14(b). Go To Headnote

Garlitz v. Alpena Reg'l Med. Ctr., 834 F. Supp. 2d 668, 25 Am. Disabilities Cas. (BNA) 1110, 113 Fair Empl. Prac. Cas. (BNA) 1670, 2011 U.S. Dist. LEXIS 138561 (E.D. Mich. 2011).

Overview: An acute-care medical facility was denied summary judgment on a medical technologist’s ADA claim where there was an issue of fact as to whether a real job offer had been made within the meaning of 42 U.S.C.S. § 12112(d)(3). A claim under 42 U.S.C.S. § 2000e-2(a)(1) also survived.

• •The Americans with Disabilities Act ADA prohibits an employer from requiring an applicant to undergo a preemployment medical examination, unless it is focused on the ability of the applicant to perform job-related functions. 42 U.S.C.S. § 12112(d)(2); 29 C.F.R. § 1630.14(a). Once an employer has made an offer of employment to an applicant, however, the ADA permits employers to require an employment entrance examination in which they may inquire into a range of topics unrelated to job-related functions. 42 U.S.C.S. § 12112(d)(3). Go To Headnote

Indergard v. Georgia-Pacific Corp., 14 Accom. Disabilities Dec. (CCH) ¶ 4-013, 582 F.3d 1049, 14 Accom. Disabilities Dec. (CCH) P14-013, 22 Am. Disabilities Cas. (BNA) 660, 2009 U.S. App. LEXIS 21312 (9th Cir. 2009).

Overview: Where an employer required an employee to participate in a physical capacity evaluation (PCE) before returning to work from medical leave, the employee’s ADA disability discrimination claim survived summary judgment because the PCE was a medical examination within the meaning of 42 U.S.C.S. § 12112(d)(4)(A).

• •Under the Americans with Disabilities Act (ADA), an employer may not require a current employee to undergo a medical examination unless the examination is shown to be job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(4)(A). This section applies to all employees, whether or not they are disabled under the ADA. The implementing regulations impose the same restriction, but state that an employer may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Go To Headnote
• •The interpretive appendix to 29 C.F.R. § 1630.14(a) contemplates the use of “physical agility tests,” which are not medical examinations and so may be given at any point in the application or employment process. 29 C.F.R. pt. 1630, app. § 1630.14(a). The appendix further states that physical agility tests must be given to all similarly situated applicants or employees regardless of disability, and notes that if the test screens out or tends to screen out an individual with a disability the employer would have to demonstrate that the test is job-related and consistent with business necessity and that performance cannot be achieved with reasonable accommodation. 29 C.F.R. pt. 1630, app. § 1630.14(a). Go To Headnote

Kingston v. Ford Meter Box Co., 2009 U.S. Dist. LEXIS 31710 (N.D. Ind. Apr. 10, 2009).

Overview: Employer was granted summary judgment on the ADA claim; in light of the employee’s job requirement to attend production meetings, his ability to walk to the meetings slowly, and the potential use of the elevator, no reasonably jury could find that allowing another individual to attend the meetings in the employee’s place was a reasonable request.

• •Employers are allowed to gather disability information from current employees in two ways: (1) they may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program; and (2) the employer may make inquiries into the ability of an employee to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(B). The Americans with Disabilities Act requires that all information employers receive from these two channels be kept confidential. 42 U.S.C.S. § 12112(d). Employers may ask employees about their medical information for certain job related purposes, but once that information is obtained, they must keep it confidential, except that supervisors and managers may be informed about necessary restrictions or accommodations on work duties, first aid and safety personnel may be informed when appropriate, and government officials investigating compliance with this act can obtain the information. 42 U.S.C.S. § 12112(d)(3) and (4); 29 C.F.R. § 1630.14(c)(1). Go To Headnote

Fortunato v. Cooley Dickinson Hosp., Inc., 597 F. Supp. 2d 206, 2009 U.S. Dist. LEXIS 11031 (D. Mass. 2009).

Overview: Under Massachusetts law anyone driving a blood mobile needed a medical certification issued by the department of transportation or a waiver. Since plaintiff driver, a diabetic, could obtain neither, he was not a qualified person with a disability under the ADA and state law. Inquiries related to his ability were permissible, and he could be fired.

• •Where a plaintiff alleges that an employer violated the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., by impermissibly inquiring about a disability or administering a medical examination, the plaintiff must show that the inquiry or examination was not job-related and consistent with business necessity. 29 C.F.R. 1630.14(c) (2008). Employers are specifically permitted to make inquiries into the ability of an employee to perform job-related functions. Go To Headnote

Denman v. Davey Tree Expert Co., 266 Fed. Appx. 377, 2007 FED App. 0881N, 20 Am. Disabilities Cas. (BNA) 105, 2007 U.S. App. LEXIS 30048 (6th Cir. 2007).

Overview: Summary judgment for employer was proper in employee’s action under ADA; employer’s requests for medical information on bipolar disorder and for an independent medical examination were job-related and consistent with business necessity under 42 U.S.C.S. § 12112(d)(4)(A) because attendance was an essential function of employee’s job as foreman.

• •An employer’s request for a medical examination is job-related and consistent with business necessity under 42 U.S.C.S. § 12112(d)(4)(A) when: (1) the employee requests an accommodation; (2) the employee’s ability to perform the essential functions of the job is impaired; or (3) the employee poses a direct threat to himself or others. The Americans with Disabilities Act permits employers to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. § 1630.14(c). Health problems that significantly affect an employee’s performance of essential job functions justify ordering a physical examination. The determination that an individual poses a “direct threat” shall be based on a reasonable medical judgment. 29 C.F.R. § 1630.2(r). Go To Headnote

Dean v. Philip Morris USA Inc., 15 Am. Disabilities Cas. (BNA) 369, 2003 U.S. Dist. LEXIS 13035 (M.D.N.C. July 29, 2003).

Overview: Where the employee was transferred to a new position due to her medical condition and allegedly was subject to racial intimidation there, the court did not find violations of the ADA, Title VII, or retaliation.

• •According to Equal Employment Opportunity Commission regulations, an employer may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). This court and many others have held that a request for a medical examination, without more, is not sufficient to establish that a plaintiff is regarded as disabled. Among the factors which a court should evaluate in determining whether a request for a physical examination can establish that an employee was regarded as disabled are whether the examination was limited to the condition which gave rise to the examination, and whether the employer had a reasonable basis to request the examination. Go To Headnote

Terry v. City of Greensboro, 14 Am. Disabilities Cas. (BNA) 1494, 2003 U.S. Dist. LEXIS 869 (M.D.N.C. Jan. 17, 2003).

Overview: Where a police department rehired an injured police officer as telephone response technician after a medical exam, officer did not establish ADA claim; as technician position was within department, officer was not precluded from broad range of jobs.

• •According to the Equal Employment Opportunity Commission’s (EEOC) regulations, evaluations ordered by an employer to determine whether an employee can fulfill the essential functions of the job are appropriate. 29 C.F.R. § 1630.14(c). Further, an employer’s mandate of a medical evaluation conducted after an on-the-job injury is job related and a business necessity pursuant to 42 U.S.C.S. § 12112(d)(4) of the Americans With Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq. Go To Headnote

Farmiloe v. Ford Motor Co., 277 F. Supp. 2d 778, 14 Am. Disabilities Cas. (BNA) 1354, 2002 U.S. Dist. LEXIS 26643 (N.D. Ohio 2002).

Overview: Summary judgment in favor of an employer on a retiree’s ADA failure to hire claim was denied because the employer failed to show that its request for a disability retiree’s complete medical and psychiatric records was job-related.

• •Under the Americans with Disabilities Act, a post-offer pre-employment applicant may be subjected to a medical examination if all entering employees are subjected to such an examination regardless of disability. 42 U.S.C.S. § 12112(d)(3). The Equal Employment Opportunity Commission regulations state that a medical examination or inquiry is allowed as to a post-offer pre-employment applicant if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability. 29 C.F.R. § 1630.14(b) (2002). Go To Headnote

Conrad v. Bd. of Johnson County Comm'rs, 237 F. Supp. 2d 1204, 14 Am. Disabilities Cas. (BNA) 936, 2002 U.S. Dist. LEXIS 21610 (D. Kan. 2002).

Overview: Employee’s ADEA claim failed; court found that the employee had submitted nothing more than speculation in support of her claim that the employer’s stated reasons for her termination were pretextual and that age played a role in her termination.

• •Generally speaking, the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12111 et seq., prohibits employers from inquiring as to whether an employee has a disability or inquiring as to the nature and severity of any disability. 42 U.S.C.S. § 12112(d)(4)(A). This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. An employer is allowed, however, to make medical inquiries of employees in certain situations. A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). A covered entity may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). The Equal Employment Opportunity Commission interprets this regulation as permitting employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. pt. 1630, app. § 1630.13(b). An employer’s request that an employee undergo a medical examination must be supported by evidence that would cause a reasonable person to inquire as to whether an employee is still capable of performing his job. These rules apply to psychiatric and mental evaluations as well as medical examinations. Go To Headnote

Pollitt v. Roadway Express, Inc., 228 F. Supp. 2d 854, 2002 U.S. Dist. LEXIS 20005 (S.D. Ohio 2002).

Overview: Allegation that a labor relations manager stated that an employer did not reinstate an employee because it felt that he would “fall apart” on account of his being an “old man,” was direct evidence precluding summary judgment in an ADEA case.

• •Under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., and related regulations, an employer has a right to inquire into the ability of an employee to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(B); 29 C.F.R. § 1630.14(c). Go To Headnote

Johnson v. Eastchester Union Free Sch. Dist., 211 F. Supp. 2d 514, 2002 U.S. Dist. LEXIS 13384 (S.D.N.Y. 2002).

Overview: No discrimination was shown since the change in the location and hours of the employee’s job did not constitute an adverse employment action, and there was no evidence of any discriminatory animus based on age.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12112 et seq., permits job-related medical examinations. 29 C.F.R. § 1630.14(c). Go To Headnote
• •An employer may require a medical examination of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). An employer must demonstrate some reasonable basis for concluding that the inquiry was necessary. The employer must have a genuine reason to doubt that an employee can perform job-related functions. Go To Headnote

O'Neal v. City of New Albany, 10 Accom. Disabilities Dec. (CCH) ¶ 0-086, 83 Empl. Prac. Dec. (CCH) ¶ 1132, 293 F.3d 998, 10 Accom. Disabilities Dec. (CCH) P10-086, 13 Am. Disabilities Cas. (BNA) 289, 83 Empl. Prac. Dec. (CCH) P41132, 89 Fair Empl. Prac. Cas. (BNA) 221, 2002 U.S. App. LEXIS 11740 (7th Cir. 2002), reh'g denied, 2002 U.S. App. LEXIS 14875 (7th Cir. July 22, 2002).

Overview: Where applicant was first told that his information was not sent along for approval because he had not passed medical exam but was later told that it was not sent because he was over maximum hiring age, employer’s reasons were pretextual.

• •42 U.S.C.S. § 12112(d)(2) prohibits preemployment medical examinations or inquiries unless they are focused on the ability of the applicant to perform job-related functions. 29 C.F.R. § 1630.14(a). But once an employer has made an offer of employment to an applicant, the employer may require a medical examination and may condition an offer of employment on the results. 42 U.S.C.S. § 12112(d)(3). A post-offer examination does not have to be job-related. 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 9 Accom. Disabilities Dec. (CCH) ¶ -242, 183 F. Supp. 2d 1292, 9 Accom. Disabilities Dec. (CCH) P9-242, 12 Am. Disabilities Cas. (BNA) 1363, 2001 U.S. Dist. LEXIS 22544 (D. Kan. 2001).

Overview: Claim of improper medical inquiry under ADA was not subject to disparate impact analysis. After employee had stroke, and was under work restrictions, employer properly attempted to determine whether employee could perform outside sales job.

• •Generally, the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., ADA prohibits employers from making inquiries as to whether an employee is an individual with a disability or as to the nature and severity of any such disability. 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.13(b). This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. 29 C.F.R. pt. 1630, app. § 1630.13 (b). An employer is allowed, however, to make medical inquiries of employees as long as such inquiries are job related and consistent with business necessity. 42 U.S.C.S. § 12112(b)(4)(B); 29 C.F.R. § 1630.14(c). Specifically, the ADA permits employers to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. pt. 1630, app. § 1630.14(c). Determining whether a medical inquiry is job related and consistent with business necessity must be analyzed in an overall context rather than considering each individual inquiry in isolation. Go To Headnote
• •The legislative and regulatory materials relating to claims of improper medical inquiries under the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., or the Rehabilitation Act of 1973 do not contain a suggestion that disparate impact principles apply to individual improper medical inquiry claims. 42 Fed. Reg. 22,689 (1977); 29 C.F.R. §§ 1630.13-14; 29 C.F.R. Pt. 1630, app. §§ 1630.13-14. Instead, the Equal Employment Opportunities Commission’s Interpretive Guidance to the ADA provides that the employer’s medical inquiries must be job related and serve a legitimate business purpose. 29 C.F.R. pt. 1630, app. § 1630.13(b). Similarly, the Interpretive Guidance states that employers are permitted to make medical inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his or her job— not when there is a compelling need, an immediate need, or a need which is of great importance to the employer. 29 C.F.R. pt. 1630, app. § 1630.14(c). Go To Headnote
• •The regulations implementing the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., allow employers to make medical inquiries regarding any reasonable accommodations that may be required to assist a qualified individual with a disability perform a job. 29 C.F.R. Pt. 1630, App. § 1630.14 (c). Go To Headnote

Tice v. Ctr. Area Transp. Auth., 9 Accom. Disabilities Dec. (CCH) ¶ -010, 247 F.3d 506, 9 Accom. Disabilities Dec. (CCH) P9-010, 11 Am. Disabilities Cas. (BNA) 1185, 2001 U.S. App. LEXIS 7405 (3d Cir. 2001).

Overview: Dismissal of plaintiff’s ADA claims was affirmed where his former employer’s request for a medical examination, standing alone, was not sufficient to establish that the defendant “regarded” the plaintiff as disabled.

• •Under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). Under these standards, a request for a medical examination that complies with the statutory restrictions will never, in the absence of other evidence, be sufficient to demonstrate that an employer “regarded” the employee as substantially limited in a major life activity, simply because an examination that is “job-related” and “consistent with business necessity” must, at minimum, be limited to an evaluation of the employee’s condition only to the extent necessary under the circumstances to establish the employee’s fitness for the work at issue. A request for such an appropriately-tailored examination only establishes that the employer harbors doubts (not certainties) with respect to an employee’s ability to perform a particular job. Doubts alone do not demonstrate that the employee was held in any particular regard. Go To Headnote

Farmiloe v. Ford Motor Co., 277 F. Supp. 2d 778, 2001 U.S. Dist. LEXIS 25365 (N.D. Ohio 2001), adopted, 277 F. Supp. 2d 778, 14 Am. Disabilities Cas. (BNA) 1354, 2002 U.S. Dist. LEXIS 26643 (N.D. Ohio 2002).

Overview: Where an employee was most like a post-offer pre-employment applicant, an employer did not provide enough information as to whether, inter alia, it did not request more information from him than it did of other returning disability retirees.

• •A medical examination of a post-offer preemployment applicant is not required to be job-related and consistent with business necessity. However, if an employer withdraws an offer of employment because the medical examination reveals that the employee does not satisfy certain employment criteria, either the exclusionary criteria may not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, or they must be job-related and consistent with business necessity. 29 C.F.R. § 1630.14(b). Go To Headnote

Ketcher v. Wal-Mart Stores, Inc., 122 F. Supp. 2d 747, 12 Am. Disabilities Cas. (BNA) 79, 2000 U.S. Dist. LEXIS 17641 (S.D. Tex. 2000).

Overview: Where plaintiff sued for disability discrimination, plaintiff failed to prove prima facie case that he was qualified for another job, that defendant knew of his interest, and that he was denied job because of a disability.

• •The regulations established by the Department of Labor provide that an employer may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity and may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Go To Headnote
• •The appendix to 29 C.F.R. § 1630.14(c) states that this provision permits employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 95 F. Supp. 2d 1171, 12 Am. Disabilities Cas. (BNA) 1348, 2000 U.S. Dist. LEXIS 6272 (D. Kan. 2000).

Overview: Employee who was receiving long-term disability and Social Security disability benefits could not sustain action against employer for disability-based discrimination or harassment, as she could not perform essential job functions.

• •The Americans with Disabilities Act (ADA) permits employers or other covered entities to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. § 1630.14(c). Go To Headnote

Holiday v. City of Chattanooga, 7 Accom. Disabilities Dec. (CCH) ¶ -242, 206 F.3d 637, 2000 FED App. 0087P, 7 Accom. Disabilities Dec. (CCH) P7-242, 10 Am. Disabilities Cas. (BNA) 501, 2000 U.S. App. LEXIS 3660 (6th Cir. 2000), reh'g, en banc, denied, 2000 U.S. App. LEXIS 9557 (6th Cir. May 4, 2000).

Overview: Grant of summary judgment for city reversed because a genuine issue of material fact existed under the ADA as to whether city improperly refused to hire HIV-positive applicant as police officer because of his disability.

• •The Americans with Disabilities Act’s (ADA), 42 U.S.C.S. § 12101, prohibitions against employment discrimination expressly extend to medical examinations and inquiries. 42 U.S.C.S. § 12112(d)(1). Towards this end, the regulations promulgated under the ADA provide that the results of such medical examination shall not be used for any purpose inconsistent with the ADA. 29 C.F.R. § 1630.14(b)(2). Go To Headnote

Fritsch v. City of Chula Vista, 11 Am. Disabilities Cas. (BNA) 273, 2000 U.S. Dist. LEXIS 14820 (S.D. Cal. Feb. 17, 2000).

Overview: An employee’s Americans with Disabilities Act action following her termination for failing to submit to a psychological evaluation was dismissed where the evaluation was job related and necessary.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., permits an employer to require a current employee to submit to a medical examination only if the employer can prove that it is inquiring into the employee’s ability to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(A), (B); 29 C.F.R. § 1630.14(c). Specifically, the employer must demonstrate that the request for a medical examination is job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(4)(A). This protection is available to every employee, regardless of whether she is a qualified individual with a disability. The need for the examination may be triggered by some evidence of problems related to job performance or safety. Go To Headnote

Pouncil v. Kansas Empl. Sec. Bd. of Review, Unemployment Ins. Rep. (CCH) P 8259, Unemployment Ins. Rep. (CCH) ¶ 259, 268 Kan. 470, 997 P.2d 715, Unemployment Ins. Rep. (CCH) ¶ 8259, Unemployment Ins. Rep. (CCH) P8259, 2000 Kan. LEXIS 17 (Kan. 2000).

Overview: Claimant was disqualified from receiving unemployment compensation benefits due to misconduct because she willfully failed to disclose a prior, material, and work-related injury and gave false information on employment forms.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq. (1994), both in the law and regulations, allows medical histories after an offer of employment. 42 U.S.C.S. § 12112; 29 C.F.R. § 1630.14(b) (1999). Go To Headnote

Ditullio v. Village of Massena, 81 F. Supp. 2d 397, 11 Am. Disabilities Cas. (BNA) 341, 2000 U.S. Dist. LEXIS 804 (N.D.N.Y. 2000).

Overview: Defendant entitled to summary judgment on ADA claim where plaintiff’s impairment did not substantially limit a major life activity and defendant did not perceive plaintiff as being so limited.

• •For an employer’s request for a medical exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job. An employee’s behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions. The regulations similarly provide that an employer may require a medical examination that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). Medical examinations must be restricted to discovering whether the employee can continue to fulfill the essential functions of the job. Go To Headnote

Scott v. Leavenworth Unified Sch. Dist. No. 453, 190 F.R.D. 583, 1999 U.S. Dist. LEXIS 20053 (D. Kan. 1999).

Overview: Personnel files and medical information relevant to plaintiff’s disability discrimination claim were subject to production in discovery, but once produced were protected from disclosure except as necessary for litigation.

• •The Americans with Disabilities Act (ADA) and its regulations expressly prohibit the disclosure of information about the medical condition or history of an employee when that information is obtained through any medical examination or in response to a medical inquiry allowed under the ADA. Both the statute and the regulations provide that such medical information must be collected and maintained on separate forms and kept in separate medical files and treated as a confidential medical record. 42 U.S.C.S. § 12112(d)(3)(B); 29 C.F.R. § 1630.14(c)(1). Go To Headnote

Lent v. Goldman Sachs & Co., 1998 U.S. Dist. LEXIS 20371 (S.D.N.Y. Dec. 29, 1998).

Overview: Defendant investment bank was denied summary judgment, in a case where an epileptic alleged termination in violation of the Americans with Disabilities Act and state law, because issues existed for jury determination.

• •42 U.S.C.S. § 12112(d)(4)(A) permits employers to make inquiries where there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. pt. 1630.14(c), app. § 81 (1998). The Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., requirements may also be met when an employer can show that an employee will pose a direct threat to health and safety due to a medical condition. An inquiry may be necessary to help determine whether an accommodation might be required under the ADA. 29 C.F.R. pt. 1630, app. § 60 (1998). However, § 12112(d)(4)(A) serves to prevent inquiries that do not serve a legitimate business purpose. Go To Headnote

Johnson v. Goodwill Indus., 1998 U.S. Dist. LEXIS 21040 (E.D.N.C. Dec. 16, 1998).

Overview: An ex-employee’s opinion that she was able to perform the duties of her job could not bar an employer’s right to request a fitness for duty exam under the American with Disabilities Act and refusal to take such exam was grounds for termination.

• •It is undisputed that the Americans With Disabilities Act (ADA) authorizes employers to require medical examinations which are job-related and consistent with business necessity, 42 U.S.C.S.§ 12112(d)(4)(A). The ADA also expressly makes acceptable medical examinations and inquiries which evaluate the ability of an employee to perform job-related functions, 42 U.S.C.S.§ 12112(d)(4)(B). Additionally, the regulations promulgated in accordance with the ADA state that an employer may require a medical examination and/or inquiry of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions, 29 C.F.R. § 1630.14(c). Employers may also make inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. Go To Headnote

Miller v. City of Springfield, 146 F.3d 612, 8 Am. Disabilities Cas. (BNA) 321, 1998 U.S. App. LEXIS 13385 (8th Cir. 1998), reh'g, en banc, denied, 1998 U.S. App. LEXIS 20523 (8th Cir. July 30, 1998).

Overview: The district court properly entered judgment in favor of city and its employees because an applicant, denied a position as a police recruit for failure to pass psychological exam, presented no evidence that they regarded her as disabled.

• •29 C.F.R. § 1630.14(b)(3) provides: Medical examinations conducted in accordance with this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity. Go To Headnote

Malkowski v. PTC Capital Corp., 1998 U.S. Dist. LEXIS 3592 (N.D. Ill. Mar. 16, 1998).

Overview: Allegations of age and disability discrimination resulting from an alleged constructive discharge from employment were not supported by sufficient evidence to withstand summary judgment motion.

• •Americans with Disabilities Act (ADA) regulations allow the employer to require a medical examination or make inquiries into an employee’s ability to perform his job. 29 C.F.R. 1630.14(c) (1997). These inquiries are necessary to help determine whether an accommodation might be required under the ADA. 29 C.F.R. Pt. 1630, App. at 367 (1997). Go To Headnote

Norman-Bloodsaw v. Lawrence Berkeley Lab., 5 Accom. Disabilities Dec. (CCH) ¶ -011, 72 Empl. Prac. Dec. (CCH) ¶ 5201, 135 F.3d 1260, 98 Cal. Daily Op. Service 901, 98 D.A.R. 1215, 5 Accom. Disabilities Dec. (CCH) P5-011, 7 Am. Disabilities Cas. (BNA) 1395, 72 Empl. Prac. Dec. (CCH) P45201, 75 Fair Empl. Prac. Cas. (BNA) 1695, 13 I.E.R. Cas. (BNA) 1121, 1998 U.S. App. LEXIS 1398 (9th Cir. 1998).

Overview: Employees’ claims relating to secret testing of urine for certain conditions were not time-barred where it turned on material facts; summary judgment was inappropriate on claims of privacy, equal protection, and disability discrimination.

• •The Americans with Disabilities Act (ADA) creates three categories of medical inquiries and examinations by employers: (1) those conducted prior to an offer of employment (“preemployment” inquiries and examinations); (2) those conducted after an offer of employment has been made but prior to the commencement of employment duties (“employment entrance examinations”); and (3) those conducted at any point thereafter. Unlike examinations conducted at any other time, an employment entrance examination need not be concerned solely with the individual’s ability to perform job-related functions, 42 U.S.C.S. § 12112(d)(2); nor must it be job-related or consistent with business necessity, 42 U.S.C.S. § 12112(d)(4). Thus, the ADA imposes no restriction on the scope of entrance examinations; it only guarantees the confidentiality of the information gathered, 42 U.S.C.S. § 12112(d)(3)(B), and restricts the use to which an employer may put the information. 42 U.S.C.S. § 12112(d)(3)(C); 42 U.S.C.S. § 12112(d)(1); 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Stinson v. West Suburban Hosp. Medical Ctr., 1998 U.S. Dist. LEXIS 566 (N.D. Ill. Jan. 13, 1998).

Overview: The employer was entitled to establish reasonable qualifications for position as long as they were job-related and consistent with business necessity, and to condition an employment offer upon the results of a post-offer physical examination.

• •Ultimately, it is an employer’s prerogative to establish reasonable qualifications for a position. As long as the qualification standard is job-related for the position in question and consistent with business necessity, an employer is free to use reasonable qualifications to screen out potential employees. 42 U.S.C.S. § 12112(6). Not only is an employer at liberty to enforce its qualification standards, but it is entitled to make an applicant’s employment offer conditioned upon the results of a post-offer medical examination. 42 U.S.C.S. § 12112(d)(3), 29 C.F.R. § 1630.14(b). Go To Headnote

Metzenbaum v. John Carroll Univ., 987 F. Supp. 610, 1997 U.S. Dist. LEXIS 17340 (N.D. Ohio 1997).

Overview: In an employment discrimination case, an employee’s action was barred under the doctrine of res judicata because a prior state action that involved the same parties and the same facts, had been dismissed with prejudice, in favor of employer.

• •The Americans with Disability Act permits employers to make inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his job. 42 U.S.C.S. § 12112(d)(4), 29 C.F.R. § 1630.14(c). Moreover, an employer is entitled to set qualification standards for specific jobs. The regulations define “qualification standard” as the personal and professional attributes established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired. 29 C.F.R. § 1630.2(q). The “qualification standard” may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. 29 C.F.R. § 1630.15(b)(2). Go To Headnote

Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465, 1997 U.S. Dist. LEXIS 21178 (N.D. Tex. 1997).

Overview: The employee’s ADA action failed as a matter of law because she failed to raise a genuine issue of fact as to whether her impairment substantially limited a major life activity.

• •The Americans with Disabilities Act allows employers to inquire into an employee’s ability to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(B); 29 C.F.R. § 1630.14(c). Go To Headnote

Deckert v. City of Ulysses, 1996 U.S. App. LEXIS 33969 (10th Cir. Dec. 31, 1996).

Overview: Police officer, who was diabetic, failed to show that city fired him due to his medical condition and city was not liable of discriminating against officer for a disability, when evidence showed that city fired him for good cause.

• •Section 12112(d)(4)(A) of the Americans with Disability Act allows an employer to require a medical exam when it is job-related and consistent with business necessity. As interpreted by the Equal Employment Opportunity Commission, section 12112(d)(4)(A) authorizes such an exam when an employee is having difficulty performing his or her job effectively. Technical Assistance Manual to 29 C.F.R. § 1630.14(c). Go To Headnote

Armstrong v. Turner Indus., 4 Accom. Disabilities Dec. (CCH) ¶ -011, 950 F. Supp. 162, 4 Accom. Disabilities Dec. (CCH) P4-011, 7 Am. Disabilities Cas. (BNA) 875, 20 Am. Disabilities Dec. 237, 1996 U.S. Dist. LEXIS 19368 (M.D. La. 1996), aff'd, 5 Accom. Disabilities Dec. (CCH) ¶ -118, 141 F.3d 554, 5 Accom. Disabilities Dec. (CCH) P5-118, 8 Am. Disabilities Cas. (BNA) 118, 1998 U.S. App. LEXIS 9863 (5th Cir. 1998).

Overview: Company was entitled to summary judgment on job applicant’s ADA claim because there was no evidence that company regarded applicant as disabled. Company’s mere awareness of previous asbestos exposure was not sufficient to defeat summary judgment.

• •The Americans With Disabilities Act, 42 U.S.C.S. § 12101 et seq., also prohibits discrimination against qualified individuals with disabilities in regard to job application procedures. This prohibition includes medical examinations and inquiries. 42 U.S.C.S. § 12112(d)(1). An employer cannot conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. 42 U.S.C.S. § 12112(d)(2)(A). However, under certain conditions an employer may require a medical examination after an offer of employment has been made to an applicant and prior to the beginning of the employment duties. 42 U.S.C.S. § 12112(d)(3); 29 C.F.R. §§ 1630.13 and 1630.14. Go To Headnote

EEOC v. Texas Bus Lines, 2 Accom. Disabilities Dec. (CCH) ¶ -309, 923 F. Supp. 965, 2 Accom. Disabilities Dec. (CCH) P2-309, 5 Am. Disabilities Cas. (BNA) 878, 17 Am. Disabilities Dec. 1375, 1996 U.S. Dist. LEXIS 8800 (S.D. Tex. 1996).

Overview: Qualified job applicant’s obesity, without additional medical problems, was not a disability as defined by Americans with Disabilities Act, under which employer was liable for third-party physician’s discriminatory rejection of obese applicant.

• •The regulations promulgated under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. 1211 et seq., specifically provide that the results of a medical examination shall not be used for any purpose inconsistent with the ADA. 29 C.F.R. § 1630.14(b)(2). Additionally, the ADA prohibits employers from participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by the ADA. 42 U.S.C.S. § 12112(b)(2). Go To Headnote

Mobley v. Board of Regents, 924 F. Supp. 1179, 5 Am. Disabilities Cas. (BNA) 949, 16 Am. Disabilities Dec. 772, 1996 U.S. Dist. LEXIS 6198 (S.D. Ga.), vacated, 26 F. Supp. 2d 1374, 1996 U.S. Dist. LEXIS 22264 (S.D. Ga. 1996).

Overview: Summary judgment in favor of employer in employee’s disability discrimination suit was proper because there was no evidence that employee was disabled and employer did not regard her as disabled by taking preliminary steps to accommodate her.

• •Pursuant to 29 C.F.R. 1630.14(c), an employer covered by the Americans with Disabilities Act may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions. Go To Headnote

Deckert v. City of Ulysses, 4 Am. Disabilities Cas. (BNA) 1569, 12 Am. Disabilities Dec. 961, 1995 U.S. Dist. LEXIS 14526 (D. Kan. Sept. 6, 1995), aff'd, 1996 U.S. App. LEXIS 33969 (10th Cir. Dec. 31, 1996).

Overview: A diabetic police officer’s employment was not terminated in violation of the Americans with Disabilities Act. The employer did not violate the officer’s due process rights when it terminated his employment for non-discriminatory reasons.

• •The Americans with Disabilities Act of 1990 permits, pursuant to 42 U.S.C.S. § 12112(4)(f)(A) and 29 C.F.R. § 1630.14(c), medical examinations when it is a business necessity. Go To Headnote

Bombrys v. City of Toledo, 1 Accom. Disabilities Dec. (CCH) ¶ -156, 849 F. Supp. 1210, 1 Accom. Disabilities Dec. (CCH) P1-156, 3 Am. Disabilities Cas. (BNA) 651, 6 Am. Disabilities Dec. 839, 1993 U.S. Dist. LEXIS 20178 (N.D. Ohio 1993).

Overview: City was permanently enjoined from disqualifying insulin-dependent diabetic from police officer position as candidate could perform duties with reasonable accommodation and blanket exclusion of members in particular class violated due process.

• •Before declining to hire a disabled individual due to that individual’s direct threat to others, the employer must determine, on an individualized basis, the: (1) nature, duration, and severity of the risk; (2) probability that the potential injury will actually occur; and (3) possibility that reasonable modifications of policies, practices, or procedures will mitigate the risk. 28 C.F.R. § 36.208(c). It is acceptable for an employer to conduct pre-employment inquiries into the abilities of disabled persons to perform job-related functions. 29 C.F.R. § 1630.14(a). Employers may ask the applicant to demonstrate how he or she would perform the job, with or without accommodation. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Enforcement 

Hill v. Pfizer, Inc., 266 F. Supp. 2d 352, 14 Am. Disabilities Cas. (BNA) 1865, 2003 U.S. Dist. LEXIS 9300 (D. Conn. 2003).

Hill v. Pfizer, Inc., 266 F. Supp. 2d 352, 14 Am. Disabilities Cas. (BNA) 1865, 2003 U.S. Dist. LEXIS 9300 (D. Conn. 2003).

Overview: An employee may have been regarded as disabled in a major life activity where a decision to rescind a job offer was made solely on the basis of an employer’s doctor’s opinion that the employee was unable to perform essential functions of the job.

• •Under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., an employer may withdraw a conditional job offer for reasons that are job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(3)(c); 29 C.F.R. § 1630.14(b)(3). Moreover, the employer may only withdraw the conditional offer if performance of the essential job functions cannot be accomplished with reasonable accommodation. 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Harris v. Harris & Hart, Inc., 7 Accom. Disabilities Dec. (CCH) ¶ -243, 206 F.3d 838, 2000 Cal. Daily Op. Service 1968, 2000 D.A.R. 2689, 7 Accom. Disabilities Dec. (CCH) P7-243, 10 Am. Disabilities Cas. (BNA) 481, 2000 U.S. App. LEXIS 3713 (9th Cir. 2000).

Overview: Summary judgment for employer was proper; requiring applicant to provide medical release before rehiring was an appropriate pre-offer medical inquiry of a former employee with a known disability that did not violate ADA.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12112(d)(2)(B), creates an exception for acceptable medical inquiries: a covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. The Equal Employment Opportunity Commission interprets this exception narrowly, noting that although employers are permitted to make pre-employment inquiries into the ability of an applicant to perform job-related functions, the inquiry must be narrowly tailored. Guidance on Title I, 29 C.F.R. pt. 1630, app. § 1630.14(a). For example, the employer may describe or demonstrate the job function and inquire whether or not the applicant can perform that function with or without reasonable accommodation. Go To Headnote

Lent v. Goldman Sachs & Co., 1998 U.S. Dist. LEXIS 20371 (S.D.N.Y. Dec. 29, 1998).

Overview: Defendant investment bank was denied summary judgment, in a case where an epileptic alleged termination in violation of the Americans with Disabilities Act and state law, because issues existed for jury determination.

• •42 U.S.C.S. § 12112(d)(4)(A) permits employers to make inquiries where there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. pt. 1630.14(c), app. § 81 (1998). The Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., requirements may also be met when an employer can show that an employee will pose a direct threat to health and safety due to a medical condition. An inquiry may be necessary to help determine whether an accommodation might be required under the ADA. 29 C.F.R. pt. 1630, app. § 60 (1998). However, § 12112(d)(4)(A) serves to prevent inquiries that do not serve a legitimate business purpose. Go To Headnote

Malkowski v. PTC Capital Corp., 1998 U.S. Dist. LEXIS 3592 (N.D. Ill. Mar. 16, 1998).

Overview: Allegations of age and disability discrimination resulting from an alleged constructive discharge from employment were not supported by sufficient evidence to withstand summary judgment motion.

• •Americans with Disabilities Act (ADA) regulations allow the employer to require a medical examination or make inquiries into an employee’s ability to perform his job. 29 C.F.R. 1630.14(c) (1997). These inquiries are necessary to help determine whether an accommodation might be required under the ADA. 29 C.F.R. Pt. 1630, App. at 367 (1997). Go To Headnote

Deckert v. City of Ulysses, 1996 U.S. App. LEXIS 33969 (10th Cir. Dec. 31, 1996).

Overview: Police officer, who was diabetic, failed to show that city fired him due to his medical condition and city was not liable of discriminating against officer for a disability, when evidence showed that city fired him for good cause.

• •Section 12112(d)(4)(A) of the Americans with Disability Act allows an employer to require a medical exam when it is job-related and consistent with business necessity. As interpreted by the Equal Employment Opportunity Commission, section 12112(d)(4)(A) authorizes such an exam when an employee is having difficulty performing his or her job effectively. Technical Assistance Manual to 29 C.F.R. § 1630.14(c). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Federal & State Interrelationships 

Fritsch v. City of Chula Vista, 11 Am. Disabilities Cas. (BNA) 273, 2000 U.S. Dist. LEXIS 14820 (S.D. Cal. Feb. 17, 2000).

Fritsch v. City of Chula Vista, 11 Am. Disabilities Cas. (BNA) 273, 2000 U.S. Dist. LEXIS 14820 (S.D. Cal. Feb. 17, 2000).

Overview: An employee’s Americans with Disabilities Act action following her termination for failing to submit to a psychological evaluation was dismissed where the evaluation was job related and necessary.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., permits an employer to require a current employee to submit to a medical examination only if the employer can prove that it is inquiring into the employee’s ability to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(A), (B); 29 C.F.R. § 1630.14(c). Specifically, the employer must demonstrate that the request for a medical examination is job-related and consistent with business necessity. 42 U.S.C.S. § 12112(d)(4)(A). This protection is available to every employee, regardless of whether she is a qualified individual with a disability. The need for the examination may be triggered by some evidence of problems related to job performance or safety. Go To Headnote

Pouncil v. Kansas Empl. Sec. Bd. of Review, Unemployment Ins. Rep. (CCH) P 8259, Unemployment Ins. Rep. (CCH) ¶ 259, 268 Kan. 470, 997 P.2d 715, Unemployment Ins. Rep. (CCH) ¶ 8259, Unemployment Ins. Rep. (CCH) P8259, 2000 Kan. LEXIS 17 (Kan. 2000).

Overview: Claimant was disqualified from receiving unemployment compensation benefits due to misconduct because she willfully failed to disclose a prior, material, and work-related injury and gave false information on employment forms.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq. (1994), both in the law and regulations, allows medical histories after an offer of employment. 42 U.S.C.S. § 12112; 29 C.F.R. § 1630.14(b) (1999). Go To Headnote

Norman-Bloodsaw v. Lawrence Berkeley Lab., 5 Accom. Disabilities Dec. (CCH) ¶ -011, 72 Empl. Prac. Dec. (CCH) ¶ 5201, 135 F.3d 1260, 98 Cal. Daily Op. Service 901, 98 D.A.R. 1215, 5 Accom. Disabilities Dec. (CCH) P5-011, 7 Am. Disabilities Cas. (BNA) 1395, 72 Empl. Prac. Dec. (CCH) P45201, 75 Fair Empl. Prac. Cas. (BNA) 1695, 13 I.E.R. Cas. (BNA) 1121, 1998 U.S. App. LEXIS 1398 (9th Cir. 1998).

Overview: Employees’ claims relating to secret testing of urine for certain conditions were not time-barred where it turned on material facts; summary judgment was inappropriate on claims of privacy, equal protection, and disability discrimination.

• •The Americans with Disabilities Act (ADA) creates three categories of medical inquiries and examinations by employers: (1) those conducted prior to an offer of employment (“preemployment” inquiries and examinations); (2) those conducted after an offer of employment has been made but prior to the commencement of employment duties (“employment entrance examinations”); and (3) those conducted at any point thereafter. Unlike examinations conducted at any other time, an employment entrance examination need not be concerned solely with the individual’s ability to perform job-related functions, 42 U.S.C.S. § 12112(d)(2); nor must it be job-related or consistent with business necessity, 42 U.S.C.S. § 12112(d)(4). Thus, the ADA imposes no restriction on the scope of entrance examinations; it only guarantees the confidentiality of the information gathered, 42 U.S.C.S. § 12112(d)(3)(B), and restricts the use to which an employer may put the information. 42 U.S.C.S. § 12112(d)(3)(C); 42 U.S.C.S. § 12112(d)(1); 29 C.F.R. § 1630.14(b)(3). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Proof: General Overview 

Lanman v. Johnson County, 15 Am. Disabilities Cas. (BNA) 1017, 2003 U.S. Dist. LEXIS 25301 (D. Kan. Sept. 23, 2003), aff'd, 11 Accom. Disabilities Dec. (CCH) ¶ 1-198, 393 F.3d 1151, 11 Accom. Disabilities Dec. (CCH) P11-198, 16 Am. Disabilities Cas. (BNA) 449, 2004 U.S. App. LEXIS 27200 (10th Cir. 2004).

Lanman v. Johnson County, 15 Am. Disabilities Cas. (BNA) 1017, 2003 U.S. Dist. LEXIS 25301 (D. Kan. Sept. 23, 2003), aff'd, 11 Accom. Disabilities Dec. (CCH) ¶ 1-198, 393 F.3d 1151, 11 Accom. Disabilities Dec. (CCH) P11-198, 16 Am. Disabilities Cas. (BNA) 449, 2004 U.S. App. LEXIS 27200 (10th Cir. 2004).

Overview: In an employee’s ADA claim that her employer regarded her as mentally ill and subjected her to a hostile work environment, the employer was granted to summary judgment due to a lack of proof that they regarded her as substantially limited in working.

• •A referral to a fitness-for-duty exam that complies with the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., does not, by itself, prove that the employer considered the employee disabled. Equal Employment Opportunity Commission regulations provide that an employer may require a fitness-for-duty examination when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. § 1630.14(c). Go To Headnote

Terry v. City of Greensboro, 14 Am. Disabilities Cas. (BNA) 1494, 2003 U.S. Dist. LEXIS 869 (M.D.N.C. Jan. 17, 2003).

Overview: Where a police department rehired an injured police officer as telephone response technician after a medical exam, officer did not establish ADA claim; as technician position was within department, officer was not precluded from broad range of jobs.

• •According to the Equal Employment Opportunity Commission’s (EEOC) regulations, evaluations ordered by an employer to determine whether an employee can fulfill the essential functions of the job are appropriate. 29 C.F.R. § 1630.14(c). Further, an employer’s mandate of a medical evaluation conducted after an on-the-job injury is job related and a business necessity pursuant to 42 U.S.C.S. § 12112(d)(4) of the Americans With Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq. Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 95 F. Supp. 2d 1171, 12 Am. Disabilities Cas. (BNA) 1348, 2000 U.S. Dist. LEXIS 6272 (D. Kan. 2000).

Overview: Employee who was receiving long-term disability and Social Security disability benefits could not sustain action against employer for disability-based discrimination or harassment, as she could not perform essential job functions.

• •The Americans with Disabilities Act (ADA) permits employers or other covered entities to make inquiries or require medical examinations necessary to the reasonable accommodation process. 29 C.F.R. § 1630.14(c). Go To Headnote

Bombrys v. City of Toledo, 1 Accom. Disabilities Dec. (CCH) ¶ -156, 849 F. Supp. 1210, 1 Accom. Disabilities Dec. (CCH) P1-156, 3 Am. Disabilities Cas. (BNA) 651, 6 Am. Disabilities Dec. 839, 1993 U.S. Dist. LEXIS 20178 (N.D. Ohio 1993).

Overview: City was permanently enjoined from disqualifying insulin-dependent diabetic from police officer position as candidate could perform duties with reasonable accommodation and blanket exclusion of members in particular class violated due process.

• •Before declining to hire a disabled individual due to that individual’s direct threat to others, the employer must determine, on an individualized basis, the: (1) nature, duration, and severity of the risk; (2) probability that the potential injury will actually occur; and (3) possibility that reasonable modifications of policies, practices, or procedures will mitigate the risk. 28 C.F.R. § 36.208(c). It is acceptable for an employer to conduct pre-employment inquiries into the abilities of disabled persons to perform job-related functions. 29 C.F.R. § 1630.14(a). Employers may ask the applicant to demonstrate how he or she would perform the job, with or without accommodation. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Proof: Direct Evidence 

Adair v. City of Muskogee, 823 F.3d 1297, 32 Am. Disabilities Cas. (BNA) 1409, 41 I.E.R. Cas. (BNA) 734, 2016 U.S. App. LEXIS 9636 (10th Cir. 2016).

Adair v. City of Muskogee, 823 F.3d 1297, 32 Am. Disabilities Cas. (BNA) 1409, 41 I.E.R. Cas. (BNA) 734, 2016 U.S. App. LEXIS 9636 (10th Cir. 2016).

Overview: In a former firefighter’s suit asserting constructive discharge and discrimination, the court affirmed summary judgment to the city because the former firefighter could not show that he was qualified to meet the physical demands required following his work related injury or that the city could reasonably accommodate his lifting restrictions.

• •As the Second Circuit has noted, relatively little case law concerns the proper interpretation of business necessity in the context of a medical examination. The Equal Employment Opportunity Commission has interpreted the Americans with Disabilities Act Amendments Act of 2008, 42 U.S.C.S. § 12112(d)(4)(B), as permitting an employer to make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). Summarizing existing precedent on the subject, the Second Circuit has explained that courts will readily find a business necessity if an employer can demonstrate that a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, nondiscriminatory reasons to doubt the employee’s capacity to perform his or her duties. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Proof: Burdens of Proof: Burden Shifting 

Garrison v. Baker Hughes Oilfield Operations, Inc., 10 Accom. Disabilities Dec. (CCH) ¶ 0-034, 287 F.3d 955, 10 Accom. Disabilities Dec. (CCH) P10-034, 12 Am. Disabilities Cas. (BNA) 1825, 2002 U.S. App. LEXIS 7352 (10th Cir. 2002).

Garrison v. Baker Hughes Oilfield Operations, Inc., 10 Accom. Disabilities Dec. (CCH) ¶ 0-034, 287 F.3d 955, 10 Accom. Disabilities Dec. (CCH) P10-034, 12 Am. Disabilities Cas. (BNA) 1825, 2002 U.S. App. LEXIS 7352 (10th Cir. 2002).

Overview: While the employee admitted he falsely represented his medical history, it was within the province of the jury to ascribe withdrawal of the job offer to discriminatory use of medical exam results in violation of the ADA.

• •42 U.S.C.S. § 12112(d)(3)(A), (B) claims arise out of an employer’s post-offer hiring practices and are not related to an entering employee’s disability status. On the other hand, a violation of 42 U.S.C.S. § 12112(d)(3)(C) is contingent not only upon whether an employer conducted a post-offer medical examination, but also upon the entering employee’s ability to demonstrate use of collected information not “in accordance” with subchapter I of the Americans with Disabilities Act of 1990. Thus, to recover under 42 U.S.C.S. § 12112(d)(3)(C) a plaintiff must show the employer used collected medical information to discriminate on the basis of a disability. 42 U.S.C.S. § 12112(a); 29 C.F.R. § 1630.14(b)(3). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Proof: Burdens of Proof: Employee Burdens 

Garrison v. Baker Hughes Oilfield Operations, Inc., 10 Accom. Disabilities Dec. (CCH) ¶ 0-034, 287 F.3d 955, 10 Accom. Disabilities Dec. (CCH) P10-034, 12 Am. Disabilities Cas. (BNA) 1825, 2002 U.S. App. LEXIS 7352 (10th Cir. 2002).

Garrison v. Baker Hughes Oilfield Operations, Inc., 10 Accom. Disabilities Dec. (CCH) ¶ 0-034, 287 F.3d 955, 10 Accom. Disabilities Dec. (CCH) P10-034, 12 Am. Disabilities Cas. (BNA) 1825, 2002 U.S. App. LEXIS 7352 (10th Cir. 2002).

Overview: While the employee admitted he falsely represented his medical history, it was within the province of the jury to ascribe withdrawal of the job offer to discriminatory use of medical exam results in violation of the ADA.

• •42 U.S.C.S. § 12112(d)(3)(A), (B) claims arise out of an employer’s post-offer hiring practices and are not related to an entering employee’s disability status. On the other hand, a violation of 42 U.S.C.S. § 12112(d)(3)(C) is contingent not only upon whether an employer conducted a post-offer medical examination, but also upon the entering employee’s ability to demonstrate use of collected information not “in accordance” with subchapter I of the Americans with Disabilities Act of 1990. Thus, to recover under 42 U.S.C.S. § 12112(d)(3)(C) a plaintiff must show the employer used collected medical information to discriminate on the basis of a disability. 42 U.S.C.S. § 12112(a); 29 C.F.R. § 1630.14(b)(3). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Public Accommodations 

Haschmann v. Time Warner Entertainment Co., L.P., 5 Accom. Disabilities Dec. (CCH) ¶ -183, 74 Empl. Prac. Dec. (CCH) ¶ 5575, 135 Lab. Cas. (CCH) ¶ 3702, 151 F.3d 591, 5 Accom. Disabilities Dec. (CCH) P5-183, 8 Am. Disabilities Cas. (BNA) 692, 74 Empl. Prac. Dec. (CCH) P45575, 135 Lab. Cas. (CCH) P33702, 4 Wage & Hour Cas. 2d (BNA) 1531, 1998 U.S. App. LEXIS 17153 (7th Cir. 1998).

Haschmann v. Time Warner Entertainment Co., L.P., 5 Accom. Disabilities Dec. (CCH) ¶ -183, 74 Empl. Prac. Dec. (CCH) ¶ 5575, 135 Lab. Cas. (CCH) ¶ 3702, 151 F.3d 591, 5 Accom. Disabilities Dec. (CCH) P5-183, 8 Am. Disabilities Cas. (BNA) 692, 74 Empl. Prac. Dec. (CCH) P45575, 135 Lab. Cas. (CCH) P33702, 4 Wage & Hour Cas. 2d (BNA) 1531, 1998 U.S. App. LEXIS 17153 (7th Cir. 1998).

Overview:

• •Under 29 C.F.R. § 1630.14(c) of the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., an employer may inquire into the ability of an employee to perform functions related to his job. Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Reasonable Accommodation: General Overview 

Kingston v. Ford Meter Box Co., 2009 U.S. Dist. LEXIS 31710 (N.D. Ind. Apr. 10, 2009).

Kingston v. Ford Meter Box Co., 2009 U.S. Dist. LEXIS 31710 (N.D. Ind. Apr. 10, 2009).

Overview: Employer was granted summary judgment on the ADA claim; in light of the employee’s job requirement to attend production meetings, his ability to walk to the meetings slowly, and the potential use of the elevator, no reasonably jury could find that allowing another individual to attend the meetings in the employee’s place was a reasonable request.

• •Employers are allowed to gather disability information from current employees in two ways: (1) they may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program; and (2) the employer may make inquiries into the ability of an employee to perform job-related functions. 42 U.S.C.S. § 12112(d)(4)(B). The Americans with Disabilities Act requires that all information employers receive from these two channels be kept confidential. 42 U.S.C.S. § 12112(d). Employers may ask employees about their medical information for certain job related purposes, but once that information is obtained, they must keep it confidential, except that supervisors and managers may be informed about necessary restrictions or accommodations on work duties, first aid and safety personnel may be informed when appropriate, and government officials investigating compliance with this act can obtain the information. 42 U.S.C.S. § 12112(d)(3) and (4); 29 C.F.R. § 1630.14(c)(1). Go To Headnote

 Labor & Employment Law: Discrimination: Disability Discrimination: Rehabilitation Act 

Flynn v. Raytheon Co., 2 Accom. Disabilities Dec. (CCH) ¶ -010, 868 F. Supp. 383, 2 Accom. Disabilities Dec. (CCH) P2-010, 3 Am. Disabilities Cas. (BNA) 1495, 7 Am. Disabilities Dec. 415, 1994 U.S. Dist. LEXIS 16209 (D. Mass. 1994).

Flynn v. Raytheon Co., 2 Accom. Disabilities Dec. (CCH) ¶ -010, 868 F. Supp. 383, 2 Accom. Disabilities Dec. (CCH) P2-010, 3 Am. Disabilities Cas. (BNA) 1495, 7 Am. Disabilities Dec. 415, 1994 U.S. Dist. LEXIS 16209 (D. Mass. 1994).

Overview: Because the employee alleged that the employer selectively enforced its termination policy against alcoholics who reported to work intoxicated, the employee stated a cause of action upon which relief could be granted, precluding dismissal.

• •29 C.F.R § 1630.15(f) (1993), entitled “Additional defenses,” states that it may be a defense to a charge of discrimination under this part that the alleged discriminatory action is specifically permitted by 29 C.F.R. §§ 1630.14 or 1630.16. Moreover, under 29 C.F.R. § 1630.16(b)(2), a covered entity may require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace. The section goes on to say at 29 C.F.R. § 1630.16(b)(4) that employers may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the employer holds its other employees, even if any unsatisfactory performance or behavior is related to the employee’s drug use or alcoholism. Go To Headnote

 Labor & Employment Law: Discrimination: Disparate Impact: Proof: Burdens of Proof 

Riechmann v. Cutler-Hammer, Inc., 9 Accom. Disabilities Dec. (CCH) ¶ -242, 183 F. Supp. 2d 1292, 9 Accom. Disabilities Dec. (CCH) P9-242, 12 Am. Disabilities Cas. (BNA) 1363, 2001 U.S. Dist. LEXIS 22544 (D. Kan. 2001).

Riechmann v. Cutler-Hammer, Inc., 9 Accom. Disabilities Dec. (CCH) ¶ -242, 183 F. Supp. 2d 1292, 9 Accom. Disabilities Dec. (CCH) P9-242, 12 Am. Disabilities Cas. (BNA) 1363, 2001 U.S. Dist. LEXIS 22544 (D. Kan. 2001).

Overview: Claim of improper medical inquiry under ADA was not subject to disparate impact analysis. After employee had stroke, and was under work restrictions, employer properly attempted to determine whether employee could perform outside sales job.

• •The legislative and regulatory materials relating to claims of improper medical inquiries under the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., or the Rehabilitation Act of 1973 do not contain a suggestion that disparate impact principles apply to individual improper medical inquiry claims. 42 Fed. Reg. 22,689 (1977); 29 C.F.R. §§ 1630.13-14; 29 C.F.R. Pt. 1630, app. §§ 1630.13-14. Instead, the Equal Employment Opportunities Commission’s Interpretive Guidance to the ADA provides that the employer’s medical inquiries must be job related and serve a legitimate business purpose. 29 C.F.R. pt. 1630, app. § 1630.13(b). Similarly, the Interpretive Guidance states that employers are permitted to make medical inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his or her job— not when there is a compelling need, an immediate need, or a need which is of great importance to the employer. 29 C.F.R. pt. 1630, app. § 1630.14(c). Go To Headnote

 Labor & Employment Law: Discrimination: Disparate Impact: Statutory Application: Americans With Disabilities Act 

State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 940 N.E.2d 1280, 2010 Ohio LEXIS 3058 (Ohio 2010).

State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 940 N.E.2d 1280, 2010 Ohio LEXIS 3058 (Ohio 2010).

Overview: Physician was not entitled to an award of statutory damages in his public records request under Ohio Public Records Act, R.C. 149.43, because he did not transmit any of his written records requests by hand delivery or certified mail, as required by R.C. 149.43(C)(1).

• •Under 42 U.S.C.S. § 12112(d)(4)(B), a covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site and a covered entity may make inquiries into the ability of an employee to perform job-related functions. The information obtained by the covered entity must be treated as a confidential medical record. 42 U.S.C.S. §§ 12112(d)(3)(B) and 12112(d)(4)(C). 29 C.F.R. § 1630.14(c). Go To Headnote

Riechmann v. Cutler-Hammer, Inc., 9 Accom. Disabilities Dec. (CCH) ¶ -242, 183 F. Supp. 2d 1292, 9 Accom. Disabilities Dec. (CCH) P9-242, 12 Am. Disabilities Cas. (BNA) 1363, 2001 U.S. Dist. LEXIS 22544 (D. Kan. 2001).

Overview: Claim of improper medical inquiry under ADA was not subject to disparate impact analysis. After employee had stroke, and was under work restrictions, employer properly attempted to determine whether employee could perform outside sales job.

• •The legislative and regulatory materials relating to claims of improper medical inquiries under the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., or the Rehabilitation Act of 1973 do not contain a suggestion that disparate impact principles apply to individual improper medical inquiry claims. 42 Fed. Reg. 22,689 (1977); 29 C.F.R. §§ 1630.13-14; 29 C.F.R. Pt. 1630, app. §§ 1630.13-14. Instead, the Equal Employment Opportunities Commission’s Interpretive Guidance to the ADA provides that the employer’s medical inquiries must be job related and serve a legitimate business purpose. 29 C.F.R. pt. 1630, app. § 1630.13(b). Similarly, the Interpretive Guidance states that employers are permitted to make medical inquiries or require medical examinations when there is a need to determine whether an employee is still able to perform the essential functions of his or her job— not when there is a compelling need, an immediate need, or a need which is of great importance to the employer. 29 C.F.R. pt. 1630, app. § 1630.14(c). Go To Headnote

 Labor & Employment Law: Discrimination: Title VII of the Civil Rights Act of 1964: General Overview 

Eustace v. S. Buffalo Mercy Hosp., 2001 U.S. Dist. LEXIS 16556 (W.D.N.Y. Oct. 4, 2001), aff'd, 36 Fed. Appx. 673, 2002 U.S. App. LEXIS 11228 (2d Cir. 2002).

Eustace v. S. Buffalo Mercy Hosp., 2001 U.S. Dist. LEXIS 16556 (W.D.N.Y. Oct. 4, 2001), aff'd, 36 Fed. Appx. 673, 2002 U.S. App. LEXIS 11228 (2d Cir. 2002).

Overview: The circumstantial evidence put forth by the employee did not meet her burden to establish a genuine issue of material fact as to whether she was perceived as being disabled.

• •The United States Court of Appeals for the Second Circuit has held that requiring someone whom the employer feels might not be physically capable of performing the tasks required for the job to submit to a physical examination does not mean that the employee is regarded as having such an impairment under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq. Other circuit courts of appeals have held that requesting an employee to take psychological exams does not prove that the employers perceived their employee as having a psychic disability. In addition, 29 C.F.R. § 1630.14(c) allows an employer to require medical examinations that are job-related and consistent with business necessity. Go To Headnote

 Labor & Employment Law: Employee Privacy: Constitutional Protections 

Barnes v. Cochran, 944 F. Supp. 897, 10 Fla. L. Weekly Fed. D 239, 5 Am. Disabilities Cas. (BNA) 1685, 19 Am. Disabilities Dec. 1211, 1996 U.S. Dist. LEXIS 12597 (S.D. Fla. 1996), aff'd sub nom. Barnes v. Broward County Sheriff's, 130 F.3d 443, 1997 U.S. App. LEXIS 32879 (11th Cir. 1997).

Barnes v. Cochran, 944 F. Supp. 897, 10 Fla. L. Weekly Fed. D 239, 5 Am. Disabilities Cas. (BNA) 1685, 19 Am. Disabilities Dec. 1211, 1996 U.S. Dist. LEXIS 12597 (S.D. Fla. 1996), aff'd sub nom. Barnes v. Broward County Sheriff's, 130 F.3d 443, 1997 U.S. App. LEXIS 32879 (11th Cir. 1997).

Overview: The employer’s extensive pre-employment psychological evaluation of the job applicant was not permissible under the ADA because it provided evidence that would lead to identifying a mental disorder or impairment.

• •The Equal Employment Opportunity Commission’s regulations provide that an employer may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the job related functions. 29 C.F.R. § 1630.14(a). Go To Headnote

 Labor & Employment Law: Preemployment Practices 

Chi. Reg'l Council of Carpenters v. Berglund Constr. Co., 28 Am. Disabilities Cas. (BNA) 1848, 2013 U.S. Dist. LEXIS 178387 (N.D. Ill. Dec. 11, 2013).

Chi. Reg'l Council of Carpenters v. Berglund Constr. Co., 28 Am. Disabilities Cas. (BNA) 1848, 2013 U.S. Dist. LEXIS 178387 (N.D. Ill. Dec. 11, 2013).

Overview: In this ADA action, the employer was granted summary judgment because the undisputed evidence showed that the rehabilitation center’s evaluation was “job-related and consistent with business necessity.”

• •42 U.S.C.S. § 12112(d)(2) bars an employer from conducting a medical examination or making inquiries of a job applicant as to whether he is an individual with a disability. However, an employer may, after offering an applicant a job, require him to take a medical exam and make the job offer contingent on his passing it, as long as the employer requires all entering employees in the same job category to do so as well. 42 U.S.C.S. § 12112(d)(2), (3); 29 C.F.R. § 1630.14(b). Go To Headnote

EEOC v. Teamsters Local 804, 11 Accom. Disabilities Dec. (CCH) ¶ 1-195, 11 Accom. Disabilities Dec. (CCH) P11-195, 16 Am. Disabilities Cas. (BNA) 307, 2004 U.S. Dist. LEXIS 22452 (S.D.N.Y. Nov. 4, 2004).

Overview: EEOC may have been able to prove that the employer obtained John Doe’s HIV status information through inquiries in connection with use of sick time for medical appointments and that the union obtained same. EEOCs complaint survived motion to dismiss.

• •Title I of the Americans with Disabilities Act of 1990 (ADA) outlines three circumstances under which a covered entity must protect the confidentiality of an employee’s medical condition or history. 42 U.S.C.S. § 12112(d). Specifically, a covered entity is required to keep medical information confidential if it is obtained when: (1) the covered entity requires an individual to whom employment has been extended to undergo a pre-employment medical exam prior to the commencement of employ, 42 U.S.C.S. § 12112(d)(3); (2) the covered entity requires a current employee to undergo a medical examination or respond to an inquiry that is job-related and consistent with business necessity, 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); or (3) the covered entity conducts a voluntary medical examination that is part of an employee health program available at the work site, 42 U.S.C.S. § 12112(d)(4)(B). Go To Headnote

Jackson v. Lake County, 14 Am. Disabilities Cas. (BNA) 1609, 2003 U.S. Dist. LEXIS 16244 (N.D. Ill. Sept. 15, 2003).

Overview: Even though he was not disabled, an employee could maintain a claim under the ADA because it was illogical to allow an employer to require the employee to prove that he was not disabled by submitting to a mental examination.

• •42 U.S.C.S. § 12112(d)(2) provides that, with respect to job applicants who have not received an offer, an employer may only make preemployment inquiries of an applicant’s ability to perform job-related functions, but not into whether the applicant is disabled. Under 42 U.S.C.S. § 12112(d)(3), which applies to all an applicant who has received an offer of employment but who has not yet started work, the employer may require a medical examination and make an offer of employment conditional on the results of such examination so long as (1) all employees are subject to such inquiry; (2) information obtained is maintained on separate forms and in separate files and treated as confidential; and (3) the results of the examination are only used in accordance with this subchapter. 29 C.F.R. § 1630.14(b). As for the third requirement that the results are only used in accordance with this subchapter, this means as long as the employer does not discriminate on the basis of the applicant’s disability. Finally, under 42 U.S.C.S. § 12112(d)(4), which applies to employees, the employer may not inquire into whether an employee suffers from a disability unless any such examination is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). These rules under 42 U.S.C.S. § 12112(d) apply to psychiatric and mental evaluations as well as medical examinations. Go To Headnote

Pimental v. Dartmouth-Hitchcock Clinic, 2002 DNH 221, 236 F. Supp. 2d 177, 13 Am. Disabilities Cas. (BNA) 1722, 2002 U.S. Dist. LEXIS 25822 (D.N.H. 2002).

Overview: Employee was found not to have been disabled under the Americans with Disabilities Act where, although she was treated for breast cancer, she did not suffer a substantial impairment of the life activity, and was not perceived as such.

• •29 C.F.R. § 1630.14 specifically authorizes employers to make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or to ask an applicant to describe or to demonstrate how, with or without accommodation, the applicant will be able to perform job-related functions. Go To Headnote

Farmiloe v. Ford Motor Co., 277 F. Supp. 2d 778, 14 Am. Disabilities Cas. (BNA) 1354, 2002 U.S. Dist. LEXIS 26643 (N.D. Ohio 2002).

Overview: Summary judgment in favor of an employer on a retiree’s ADA failure to hire claim was denied because the employer failed to show that its request for a disability retiree’s complete medical and psychiatric records was job-related.

• •Under the Americans with Disabilities Act, a post-offer pre-employment applicant may be subjected to a medical examination if all entering employees are subjected to such an examination regardless of disability. 42 U.S.C.S. § 12112(d)(3). The Equal Employment Opportunity Commission regulations state that a medical examination or inquiry is allowed as to a post-offer pre-employment applicant if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability. 29 C.F.R. § 1630.14(b) (2002). Go To Headnote

O'Neal v. City of New Albany, 10 Accom. Disabilities Dec. (CCH) ¶ 0-086, 83 Empl. Prac. Dec. (CCH) ¶ 1132, 293 F.3d 998, 10 Accom. Disabilities Dec. (CCH) P10-086, 13 Am. Disabilities Cas. (BNA) 289, 83 Empl. Prac. Dec. (CCH) P41132, 89 Fair Empl. Prac. Cas. (BNA) 221, 2002 U.S. App. LEXIS 11740 (7th Cir. 2002), reh'g denied, 2002 U.S. App. LEXIS 14875 (7th Cir. July 22, 2002).

Overview: Where applicant was first told that his information was not sent along for approval because he had not passed medical exam but was later told that it was not sent because he was over maximum hiring age, employer’s reasons were pretextual.

• •42 U.S.C.S. § 12112(d)(2) prohibits preemployment medical examinations or inquiries unless they are focused on the ability of the applicant to perform job-related functions. 29 C.F.R. § 1630.14(a). But once an employer has made an offer of employment to an applicant, the employer may require a medical examination and may condition an offer of employment on the results. 42 U.S.C.S. § 12112(d)(3). A post-offer examination does not have to be job-related. 29 C.F.R. § 1630.14(b)(3). Go To Headnote

Farmiloe v. Ford Motor Co., 277 F. Supp. 2d 778, 2001 U.S. Dist. LEXIS 25365 (N.D. Ohio 2001), adopted, 277 F. Supp. 2d 778, 14 Am. Disabilities Cas. (BNA) 1354, 2002 U.S. Dist. LEXIS 26643 (N.D. Ohio 2002).

Overview: Where an employee was most like a post-offer pre-employment applicant, an employer did not provide enough information as to whether, inter alia, it did not request more information from him than it did of other returning disability retirees.

• •A medical examination of a post-offer preemployment applicant is not required to be job-related and consistent with business necessity. However, if an employer withdraws an offer of employment because the medical examination reveals that the employee does not satisfy certain employment criteria, either the exclusionary criteria may not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, or they must be job-related and consistent with business necessity. 29 C.F.R. § 1630.14(b). Go To Headnote

Harris v. Harris & Hart, Inc., 7 Accom. Disabilities Dec. (CCH) ¶ -243, 206 F.3d 838, 2000 Cal. Daily Op. Service 1968, 2000 D.A.R. 2689, 7 Accom. Disabilities Dec. (CCH) P7-243, 10 Am. Disabilities Cas. (BNA) 481, 2000 U.S. App. LEXIS 3713 (9th Cir. 2000).

Overview: Summary judgment for employer was proper; requiring applicant to provide medical release before rehiring was an appropriate pre-offer medical inquiry of a former employee with a known disability that did not violate ADA.

• •The Americans with Disabilities Act, 42 U.S.C.S. § 12112(d)(2)(B), creates an exception for acceptable medical inquiries: a covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. The Equal Employment Opportunity Commission interprets this exception narrowly, noting that although employers are permitted to make pre-employment inquiries into the ability of an applicant to perform job-related functions, the inquiry must be narrowly tailored. Guidance on Title I, 29 C.F.R. pt. 1630, app. § 1630.14(a). For example, the employer may describe or demonstrate the job function and inquire whether or not the applicant can perform that function with or without reasonable accommodation. Go To Headnote

Armstrong v. Turner Indus., 4 Accom. Disabilities Dec. (CCH) ¶ -011, 950 F. Supp. 162, 4 Accom. Disabilities Dec. (CCH) P4-011, 7 Am. Disabilities Cas. (BNA) 875, 20 Am. Disabilities Dec. 237, 1996 U.S. Dist. LEXIS 19368 (M.D. La. 1996), aff'd, 5 Accom. Disabilities Dec. (CCH) ¶ -118, 141 F.3d 554, 5 Accom. Disabilities Dec. (CCH) P5-118, 8 Am. Disabilities Cas. (BNA) 118, 1998 U.S. App. LEXIS 9863 (5th Cir. 1998).

Overview: Company was entitled to summary judgment on job applicant’s ADA claim because there was no evidence that company regarded applicant as disabled. Company’s mere awareness of previous asbestos exposure was not sufficient to defeat summary judgment.

• •The Americans With Disabilities Act, 42 U.S.C.S. § 12101 et seq., also prohibits discrimination against qualified individuals with disabilities in regard to job application procedures. This prohibition includes medical examinations and inquiries. 42 U.S.C.S. § 12112(d)(1). An employer cannot conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. 42 U.S.C.S. § 12112(d)(2)(A). However, under certain conditions an employer may require a medical examination after an offer of employment has been made to an applicant and prior to the beginning of the employment duties. 42 U.S.C.S. § 12112(d)(3); 29 C.F.R. §§ 1630.13 and 1630.14. Go To Headnote

Barnes v. Cochran, 944 F. Supp. 897, 10 Fla. L. Weekly Fed. D 239, 5 Am. Disabilities Cas. (BNA) 1685, 19 Am. Disabilities Dec. 1211, 1996 U.S. Dist. LEXIS 12597 (S.D. Fla. 1996), aff'd sub nom. Barnes v. Broward County Sheriff's, 130 F.3d 443, 1997 U.S. App. LEXIS 32879 (11th Cir. 1997).

Overview: The employer’s extensive pre-employment psychological evaluation of the job applicant was not permissible under the ADA because it provided evidence that would lead to identifying a mental disorder or impairment.

• •The Equal Employment Opportunity Commission’s regulations provide that an employer may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the job related functions. 29 C.F.R. § 1630.14(a). Go To Headnote

Grenier v. Cyanamid Plastics, Inc., 2 Accom. Disabilities Dec. (CCH) ¶ -137, 70 F.3d 667, 2 Accom. Disabilities Dec. (CCH) P2-137, 5 Am. Disabilities Cas. (BNA) 75, 13 Am. Disabilities Dec. 844, 1995 U.S. App. LEXIS 33254 (1st Cir. 1995).

Overview: The employer had the right to inquire into the employee’s ability to function effectively in the workplace, and requiring medical certification did not violate the Americans with Disabilities Act.

• •The regulations adopted under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., by the Equal Employment Opportunity Commission provide that an employer may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. 29 C.F.R. § 1630.14(a). Go To Headnote

 Labor & Employment Law: U.S. Equal Employment Opportunity Commission: Enforcement: General Overview 

Dean v. Philip Morris USA Inc., 15 Am. Disabilities Cas. (BNA) 369, 2003 U.S. Dist. LEXIS 13035 (M.D.N.C. July 29, 2003).

Dean v. Philip Morris USA Inc., 15 Am. Disabilities Cas. (BNA) 369, 2003 U.S. Dist. LEXIS 13035 (M.D.N.C. July 29, 2003).

Overview: Where the employee was transferred to a new position due to her medical condition and allegedly was subject to racial intimidation there, the court did not find violations of the ADA, Title VII, or retaliation.

• •According to Equal Employment Opportunity Commission regulations, an employer may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). This court and many others have held that a request for a medical examination, without more, is not sufficient to establish that a plaintiff is regarded as disabled. Among the factors which a court should evaluate in determining whether a request for a physical examination can establish that an employee was regarded as disabled are whether the examination was limited to the condition which gave rise to the examination, and whether the employer had a reasonable basis to request the examination. Go To Headnote

 Public Health & Welfare Law: Social Services: Disabled & Elderly Persons: Advocacy & Protection: Medical Records 

Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828, 13 Am. Disabilities Cas. (BNA) 1639, 2003 U.S. Dist. LEXIS 130 (C.D. Ill. 2003).

Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828, 13 Am. Disabilities Cas. (BNA) 1639, 2003 U.S. Dist. LEXIS 130 (C.D. Ill. 2003).

Overview: Employer’s motion to dismiss ADA claims was denied on finding that former and current employees need not be qualified individuals with a disability in order to bring a claim that an employer required improper or unauthorized medical inquiries.

• •For job applicants who have not received an offer of employment, under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., an employer may only ask about the applicant’s ability to perform job-related functions, 42 U.S.C.S. § 12112(d)(2)(B), but may not inquire whether the applicant has a disability, 42 U.S.C.S. § 12112(d)(2)(A). 29 C.F.R. § 1630.14(a). After extending an offer of employment to an applicant, an employer may condition that offer on the results of a medical examination provided that all entering employees are subject to the examination and that the results are maintained as confidential medical records. 42 U.S.C.S. § 12112(d)(3); 29 C.F.R. § 1630.14(b). Once the period of employment has commenced, the employer may not inquire whether an employee has a disability unless the examination or inquiry is “job-related and consistent with business necessity. ” 42 U.S.C.S. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c). Go To Headnote