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. 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.
 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.