Mark Wiletsky
by Mark Wiletsky, Holland & Hart LLP
The rules surrounding medical examinations under the Americans with Disabilities Act (ADA) can be tricky. The U.S. 10th Circuit Court of Appeals (whose rulings apply to all Colorado, New Mexico, Utah, and Wyoming employers) recently analyzed the rules in a case involving an employer’s decision to rescind a job offer based on a postoffer, preemployment medical examination. The lessons learned are helpful for all employers that use or consider medical examinations for applicants or employees.
Facts
Elena Sumler applied for a job as a sonographer with the University of Colorado Hospital Authority. Sonographers use their technical skills to obtain and analyze ultrasound images.
The hospital offered Sumler the position, contingent on a medical examination. As part of the medical exam process, she disclosed that she suffers from fibromyalgia and was taking medications, including two narcotic pain medications. She asserted, however, that she wasn’t disabled and had no restrictions preventing her from performing the essential job functions.
The hospital referred Sumler to occupational health physician Henry Roth for further review. According to her personal physician, who shared information with Roth, she could function normally and had worked as a sonographer at a different facility, despite the pain medications. Roth, however, disagreed. He concluded her narcotic use would interfere with her mental acuity, which both parties agreed was an essential job function. As a result, the hospital rescinded its job offer.
ADA’s restrictions on medical examinations and discrimination
The ADA restricts medical examination use, though the restrictions vary depending on the context. Sumler’s case involved the use of postoffer, preemployment examinations, which are permissible if they are required for all incoming employees. Any criteria used to exclude applicants must be job-related and consistent with business necessity.
In addition to restricting the use of medical examinations, the ADA prohibits employers from discriminating against disabled individuals. Some employers might not realize, however, the ADA also protects certain nondisabled individuals—it prohibits discrimination against individuals based on a perceived disability.
Sumler’s claims and the 10th Circuit’s decision
Sumler sued the hospital, claiming it violated her rights under the ADA when it rescinded her job offer. The hospital requested summary judgment (dismissal in its favor without a trial), arguing it didn’t violate the Act and the case shouldn’t go to trial. The district court, and ultimately the 10th Circuit, agreed. The courts’ reasoning provides some important reminders and lessons for employers.
Sumler argued the hospital violated the ADA by requiring her to meet in person with Roth for the medical examination. The 10th Circuit disagreed, holding the concerns about her use of narcotic pain medications were job-related and consistent with business necessity. The hospital believed such medications could compromise her mental acuity, a job requirement. Consequently, it complied with the ADA’s requirements concerning medical examinations.
Next, Sumler argued the hospital impermissibly discriminated against her based on a perceived disability. Again, the 10th Circuit disagreed. It noted it wouldn’t “second-guess” the hospital’s decision that narcotic pain medications impaired mental acuity. The prohibition on the use of such medications was job-related, uniformly enforced, and consistent with business necessity.
Last, Sumler asserted a jury might conclude she was, in fact, qualified for the sonographer position, despite Roth’s opinion to the contrary. Again, the 10th Circuit rejected her contention. The court concluded the opinion provided by her personal physician—that she could perform the job—wasn’t based on the hospital’s requirements for the sonography job. Instead, his opinion was based on the fact she had worked as a sonographer for another facility. Had her physician actually analyzed the hospital’s job requirements, it’s possible the 10th Circuit would have allowed her case to proceed to a trial on the merits.
Lessons learned
You can use medical examinations to determine if applicants who have been offered positions are able, with or without an accommodation, to perform the job duties. But it’s important to ensure the eligibility criteria are job-related and consistent with business necessity. In this case, if Sumler’s personal physician had actually reviewed the pertinent job description and still disagreed with Roth, it may have been necessary to obtain a third opinion. Consider your options when dealing with preemployment medical examinations because such situations can easily end up in court.
Mark Wiletsky is a partner in Holland & Hart LLP’s labor & employment practice group. He practices out of the firm’s Boulder, Colorado, office and may be reached at mbwiletsky@ hollandhart.com.
