Work Warriors and Medical Inquiries.

Q:     Cleveland Cavalier forward Kevin Love was out for last night’s NBA finals game against the Golden State Warriors. In game 2, Harrison Barnes elbowed Love in the head and then Love appeared to suffer from concussion type symptoms.  Love has indicated that he is “frustrated” by the Cavalier’s decision to keep him out of the game.  As an employer, what can you do if you suspect an employee is prevented from performing based on a medical condition?  Is it legal to ask an employee about a suspected medical condition and seek medical certification that the employee is capable of performing his/her job?

A:     The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act answers this precise question.

 Generally, [an employer may ask] a disability-related inquiry or [require a] medical examination of an employee [. . . so long as it is] “job-related and consistent with business necessity” [and] an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”

Sometimes this standard may be met when an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.

In Kevin Love’s situation, it is likely playing against the Warriors with concussion like symptoms would pose a direct threat to himself thus making any inquiry into his medical condition reasonable. Then again, the Warriors are a direct threat to anybody they play.  Go Warriors.

In light of the Zika virus scare, can I require an employee traveling to the summer Olympics in Brazil to get medical clearance before returning to work?

Q:     I have an employee that is planning to visit Brazil for the summer Olympics.  As a huge sports fan, I am very excited for my employee… U-S-A- … U-S-A!  But, as a bone fide germ-a-phobe and an employer that feels responsible for his employees’ wellbeing, I am scared of the Zika virus, which has been largely reported in the host nation.

Can I require an employee traveling to the Olympics to get medical clearance before returning to work?  Or, would such a request violate the Americans with Disabilities Act (“ADA”)?  Are there any other options?

A:     The Equal Employment Opportunity Commission (“EEOC”) provides specific guidance regarding permissible actions that an employer may take during a pandemic.  While the guidance is not binding legal authority, it sets forth established ADA principles that are relevant to these types of questions.  The guidance notes that an employer is permitted under the ADA to require an employee who has been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to work.   It is unclear whether this is limited to employees who have been out sick, or if it also includes those who have been traveling.

Note, that the ADA only allows employers to request medical information or order a medical examination when an employer has a reasonable belief (based on objective evidence) that an employee poses a “direct threat” because of a medical condition. That “threat” must be job-related, and the requested medical information must be consistent with a business necessity.[1] Because the Zika virus is not transmitted from person-to-person in casual contact, the ADA standard may not be satisfied in many job settings.[2]  That could change if the employee works in an agricultural seating where certain types of mosquitos are present.

That said, the EEOC guidance also notes, “[i]f the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.”  As such, the employer should check with the CDC and determine if it is recommending that employees stay home after returning from Brazil.  So far, public health agencies have imposed no quarantine on people returning from areas in which the Zika virus has been found.

Like any agency-provided guidance, it does not address all situations.  For example, the EEOC guidance assumes that there is a “pandemic.”  What if the illness is not considered a “pandemic” but just a dangerous situation?  These types of questions can be novel and should be vetted with your employment attorney.  However, reviewing materials like the EEOC’s Guidance on Pandemic Preparedness in the Workplace, the Americans with Disabilities Act, and the EEOC’s Guidance on Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act (ADA), is a good place to start.

In addition to Zika, you may also be concerned if the employee goes swimming![3]