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.

Will USC get hammered by Coach Sarkisian’s lawsuit?

Q:        This week Steve Sarkisian, USC’s former head football coach, filed a lawsuit claiming that he was wrongfully terminated.  As you may recall, Sarkisian  was fired shortly after USC’s Athletic Director, Pat Haden, indicated that Sarkisian was placed on indefinite leave and was “not well.”   It has been widely reported that Sarkisian has a substance abuse problem, and specifically, a problem with alcohol.  This was seemingly confirmed by Sarkisian going to rehab, and now, by this lawsuit.  This begs an interesting question – is it possible that USC violated the Americans with Disabilities Act (“ADA”) or other laws that protect those with disabilities by terminating Sarkisian?

A:        Well … it is complicated, but there is certainly a possibility.   As you may recall, a similar situation was covered in one of our previous blogs about “Johnny Football,” who coincidentally is getting a start this Sunday.  (See http://wp.me/p67Lhq-3g )

As a threshold matter, a person that uses illegal drugs, or abuses legal drugs, is not considered “disabled” pursuant to the ADA.  However, alcoholism is a covered disability under the ADA so long as the alcoholic is qualified to perform the essential functions of the job.  Like any disability, pursuant to the ADA (or the Fair Employment and Housing Act), an employer is required to reasonably accommodate an employee who suffers from alcoholism.  Leave can be a form of accommodation.

But, here is where it gets a little confusing.  On one hand, an employer can take an adverse employment action, including termination, against an employee whose use of alcohol adversely affects job performance or conduct.  Additionally, an employer may also take an adverse employment action if a person is under the influence at work.  On the other hand, Title 2 CCR section 7294.0 states that an employer has an obligation to engage in a “timely, good faith interactive process” when the employer “becomes aware of the need for an accommodation through a third party or by observation.”  So, even if the employee doesn’t say anything, if the employer is aware from some other source that the employee has an impairment that is interfering with his or her ability to perform his job, the employer is required to initiate the process.

Ultimately, whether USC violated federal or state law is an issue of timing and a variety of other facts.  While early reports that Sarkisian was intoxicated at games and/or practices seemingly support the termination, this doesn’t negate USC’s obligation to engage in the interactive process if the disability was obvious.  As a result, it could be possible that USC is not liable for wrongful termination, but is liable for its failure to engage in the interactive process and provide an accommodation, such as a leave, to Sarkisian.

Another wrinkle is that Haden allegedly placed Sarkisian under some type of “last chance agreement.”  In other words, Sarkisian signed an agreement prohibiting him from using alcohol and subjecting him to immediate termination if found intoxicated. There is not a lot of authority regarding these types of “last chance agreements” and the cases seem to be somewhat contradictory.  This makes sense, because in California, terminating an employee for refusing to participate in an employer-mandated alcohol treatment program has been found to violate an employee’s constitutional right of privacy.  Meanwhile in federal courts, last chance agreements have generally been upheld.  (See i.e., Pettus v. Cole (1996) 49 Cal.App.4th 402; Longen v. Waterous Co (8th Cir. 2003) 347 F.3d 685.)

In the end, these are shakey, not stirred, situations.  An employer considering terminating an employee for alcohol abuse must look to both federal and state law for guidance and proceed carefully to avoid getting smashed with a lawsuit.

Can the New York Giants legally inquire about a star player’s medical condition after a fireworks injury? What can the Giants do if the player refuses to answer questions?

Q.     This past 4th of July, it was widely reported that New York Giants defensive star Jason Pierre Paul (“JPP”) suffered injuries to his hands in a fireworks mishap.  The Giants and JPP have been engaged in contract negotiations this summer.  As you can imagine, JPP’s health is critical in assessing his continued value to his team.  Additionally, the Giants may need to know about JPP’s health in order to make other roster moves to secure an effective backup, which they will desperately need if they are to have any chance at stopping their division rival, the Dallas Cowboys, this season.[1]  In an attempt to gather more information, the Giants sent their athletic trainer to visit JPP at the hospital.  However, it sounds like JPP is not talking. Aren’t the Giants simply an employer and, therefore, limited to the types of medical questions they can ask an employee? (We understand they are not exactly like other employers – their employees are generally very large and very well compensated).

A.     There are indeed rules that limit an employer’s ability to ask their employees medically-related inquiries.  These rules can be found in Title I of the Americans with Disabilities Act of 1990 (“ADA”).  The types of questions that can be asked depend on the stage of the employment relationship.  The stages of employment are broken down as follows: (1) prior to an offer of employment; (2) after a conditional offer has been made; or (3) after employment begins.

Prior to an offer, no disability-related questions are permitted.  After a conditional offer, disability-related inquiries are proper so long as it is consistent for all new hires.  Once employment begins an employer may only make disability related inquiries if they are job related and consistent with a business necessity and the inquiry is based on “a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform the essential job function will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”  The “reasonable belief” may be based on observed performance problems that are reasonably consistent with a medical condition, or based on reliable information by a credible third party.  See http://www.eeoc.gov/policy/docs/guidance-inquiries.html.

In short, because JPP was an existing employee, the Giants most likely may make disability-related inquiries regarding JPP’s injury because his ability to use his hands to play defense in the NFL would be “job related and consistent with a business necessity” – assuming, of course, that ESPN and other sports news media outlets are a “credible and reliable source.”

But, what can the Giants do in this case, where it has been reported that JPP is refusing to answer any questions about his injury?  This is where it starts to get a little tricky – any discipline or adverse employment action must be based on performance problems – not a failure to respond to medically-related inquiries.  Because it is the off season, the Giants’ hands (no pun intended) appear to be tied.  And, because in the NFL it is most likely that any adverse employment action must be handled pursuant to the binding collective bargaining agreement, the situation will get increasingly complex.

Another interesting wrinkle is whether it could be argued that, because the Giants and JPP are in contract negotiations, JPP actually falls into the first stage of employment – prior to an offer of employment – thus, making any disability-related inquiry improper.  This seems unlikely because he is also on the Giants’ team roster, but his agent may prevent other teams that may want to sign him from asking.

Employee injuries and disabilities can be delicate situations, even when they happen to non-delicate NFL players.  As such, it is always a good idea to familiarize yourself with the law before making medically-related inquiries in your business.  Remember, football players aren’t the only ones with moves – sometimes plaintiffs’ lawyers have a few spin moves, bull rushes, and jukes of their own.   Employers cue D – FENSE chant now.

[1] They would also need a new quarterback, new offensive line, new special teams, extra timeouts, and a twelfth man on the field to stop Dallas from taking the division.  Shameless team plug presented by Dallas Cowboys fan (and BMJ attorney) Diane Coderniz.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.