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Tip Of The Month: Does Your Employee Have The Sniffles Or Is It Ebola? Think Twice Before Asking

As worrisome reports of deadly contagions like Ebola continue to fill the news, fears are mounting about the possibility of transmission.  As an employer, your instinct is likely to protect your workplace and employees, perhaps by sending home or demanding doctor’s notes from any employees who appear sick or who traveled abroad recently.  But be careful – the Americans with Disabilities Act (“ADA”) in many cases prohibits inquiring into whether an employee is ill or requiring testing or a doctor’s note.

The ADA states that employers “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  “Disability,” in turn, is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”  Major life activities has become a very broad term that includes a variety of tasks such as caring for oneself, seeing, hearing, and eating, as well as the operation of major bodily functions, such as the immune system, normal cell growth, and digestive, bowel, neurological, respiratory, and circulatory functions.  Because serious diseases such as Ebola affect one or more major life activities and major bodily functions, they qualify as disabilities under the ADA and infected employees are subject to the ADA’s protections.

The Equal Employment Opportunity Commission (“EEOC”) has also taken the position, supported by at least some federal courts, that the ADA’s restrictions on medical examinations and inquiries apply regardless of whether an individual has a disability.  This means you cannot simply question an employee merely because of a sickly appearance or recent travels.  You cannot even take a blanket precautionary step such as requiring all your employees to submit to medical examinations and be cleared by a doctor before returning to work, unless special circumstances exist.  Your employees are protected from such actions whether or not they are sick.  In order to make an inquiry or require an examination, the inquiry or examination must be “job-related and consistent with business necessity.”

What qualifies as “job-related and consistent with business necessity” is a very fact-specific question.  Unfortunately, protecting your employees from sickness in general is not covered.  Some cases provide guidance.  In Watson v. City of Miami Beach, a police officer sued his employer, the city of Miami Beach, for, among other things, requiring him to undergo a tuberculosis exam.  Relying on guidance from the EEOC that “periodic medical examinations for public safety positions that are narrowly tailored to address specific job-related concerns and are shown to be consistent with business necessity [are] permissible,” the Eleventh Circuit upheld the lower court’s dismissal of the officer’s lawsuit because the examination addressed “unrefuted health concerns regarding officer safety.”

In another case, EEOC v. Prevo’s Family Market, a produce clerk claiming he was HIV positive was fired from a grocery store for refusing (for over a year) the store’s request to undergo a medical examination or submit medical verification of his status.  In a lawsuit filed on behalf of the clerk by the EEOC, the Sixth Circuit found in favor of the store.  In this case, the store had a legitimate business purpose and business necessity, namely protecting the health of the clerk, the other employees and the general public.  As a produce clerk, the employee’s job involved trimming and packaging produce, and the fast pace of the job resulted in inevitable cuts, nicks, and puncture wounds.  The workers in the produce department sometimes bled on the knives used to process the produce, and these knives were not always fully cleaned and sanitized.  Even though the clerk had told the store of his HIV positive status, the Court explained that the store did not simply have to take his word for it, but could request verification.  Additionally, even though there was medical evidence that the risk of the clerk transmitting HIV to other employees or customers was very low, there were multiple other factors which had to be considered in determining whether the clerk would pose a direct threat to others.  A medical examination was required and the store’s actions were proper.

Cases such as these demonstrate that you should not be afraid of requesting a medical examination or otherwise inquiring about whether an employee has a disease in the right circumstances – but you must be sure the request is justified.  You should have a valid reason to believe the individual may be sick – in Prevo’s Market, for example, the produce clerk had actually told management that he was HIV positive – and your reasons for asking the questions or requiring the medical examination must be job-related and consistent with business necessity.  If the employee regularly interacts with customers or other employees, or comes into contact with products which could spread his/her germs, that may be enough to show a business necessity for making an inquiry.  However, without such justification, ask such questions at the company’s peril.

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.