Doctor, Doctor: Fourth Circuit Allows Case to Proceed on Employee Medical ExamWhen can you send an employee for a medical exam? In EEOC v. McLeod Health, Inc., the Fourth Circuit recently provided some guidance and allowed a plaintiff’s claim for an illegal medical exam to proceed to the jury despite evidence of safety and job performance issues.

The Facts

Cecilia Whitten was the editor of McLeod Health’s internal employee newsletter for 28 years. Whitten developed content for the newsletter by interviewing other employees and writing about company events.  To do so she often traveled among McLeod’s various campuses spread across 100 miles. Although Whitten had a disability that made walking difficult, for many years she satisfactorily performed her job duties.

Over time, Whitten began falling more frequently. She fell three times in a four-month span, but only one fall was during work and she wasn’t significantly hurt. Additionally, during this time her manager expressed concerns about her work performance. After her third fall, based on the job description, the manager’s report, and the company’s records of Whitten’s medical issues, the company required Whitten to undergo a fitness-for-duty medical exam. Of note, McLeod was not “particularly concerned with Whitten’s performance on the job.” Instead, it ordered the exam to ensure she could “safely get to different locations to do her stories.”

After the exam, the occupational therapist recommended a number of things, including that Whitten be restricted to traveling no more than 10 miles from her main office. In turn, Whitten requested accommodations in line with the therapist’s recommendations. McLeod eventually terminated Whitten “because her proposed accommodations would prevent her from traveling to the company’s various campuses to collect stories and take photographs, thereby nullifying the purpose of her position.” After Whitten filed an EEOC charge, the EEOC filed a lawsuit on Whitten’s behalf, alleging that McLeod terminated Whitten because of her disability and violated the ADA by requiring Whitten to undergo a medical exam. The district court granted summary judgment on both claims and the EEOC appealed.

Sending an Employee for a Medical Exam

The ADA does not require an employer to collect medical information on an employee but it provides that an employer can collect it under certain circumstances. For example, an employer can require a candidate to submit to a medical exam after an offer of employment is extended but before the employee starts work. With a current employee, an employer can require a medical examination only if it is job-related and consistent with business necessity. According to the EEOC’s enforcement guidelines, to require a current employee to undergo a medical exam, an employer must reasonably believe, based on objective evidence, that

  • the employee’s ability to perform an essential job function is impaired by a medical condition, or
  • the employee can perform all the essential functions of the job but doing so will pose a direct threat to his safety or the safety of others due to the medical condition.

Back to the McLeod Health Case

According to the Fourth Circuit, the threshold question was whether navigating to and within McLeod’s campuses was an essential function of Whitten’s job. The court found that the EEOC provided enough evidence that navigating to and within the campuses was not an essential job function so that it is a question for the jury. In particular, Whitten’s written job description did not require navigating the campuses, and Whitten was able to conduct interviews and collect content over the phone. Given the court’s finding that whether navigating was an essential function of Whitten’s job, the court reversed the granting of summary judgment on both claims.

Takeaways

This decision raises several issues that employers in the Fourth Circuit and elsewhere should keep in mind before requiring a medical exam.

  1. Be cautious when requesting a medical exam. Do not request one unless the employee cannot perform an essential job function. If the employee is just doing a poor job, you don’t need a medical exam.
  2. Make sure you have objective evidence that an employee’s medical condition is what is preventing him or her from performing an essential job function. Although testimony is evidence, well-documented examples are better.
  3. Double check your essential job functions. A tangential job function or a job function that is an added bonus will not suffice. Employers should begin by looking at the written job description to determine if the function is even mentioned. In determining whether a function is essential, it is important to examine the amount of time the employee spends on performing that function and the consequences if that function is not performed.
  4. If the employee can perform the essential functions, are you worried that he or she is posing a direct threat to his or her own safety or the safety of others? If not, don’t get the medical exam. A direct threat needs to be a real concern—not speculative. If it could but is unlikely to happen, how much of a threat is it? If it could maybe happen and someone could be seriously hurt, that might qualify.

Employers are still able to require employees to undergo medical examinations, but this case serves as a cautionary tale. Due to the strict requirements the Fourth Circuit placed on McLeod, employers may be more inclined to wait to address issues until an accident actually happens at work (i.e., Whitten falls repeatedly at work) before requesting a medical exam.

When considering a position’s requirements and responsibilities, most people would assume that attendance is a given. Before any other job duties can be fulfilled, an employee must actually come to work. However, since individuals increasingly perform their job duties away from their employer (think technology, work-at-home policies, virtual positions, etc.), attendance has slowly but surely become a regularly contested issue in disability discrimination cases. In Lipp v. Cargill Meat Solutions Corporation, the Eighth Circuit reiterates how critical attendance is in evaluating whether an individual with a disability is a qualified individual under the Americans with Disabilities Act.

Background

Be There or Be Square – Eighth Circuit Affirms Summary Judgment in Favor of Employer Based on Attendance PolicySheena Lipp worked in Cargill’s meat and processing facility for almost twenty years. During that time, Lipp was diagnosed with an incurable lung disease, which made it difficult for her to walk, run, or otherwise exert herself physically. To ensure Lipp could maintain her position, Cargill accommodated all of her needs, including allowing time off for out-of-town appointments and during “flare ups” multiple times per year; ensuring Lipp only worked eight hours per day, five days per week, in an environment without dust or dirt; and providing Lipp with lifting assistance when she was required to move pallets.

In January 2014, Lipp began a nine-month, unplanned leave of absence to take care of her mother, who had her own significant health issues. This leave of absence violated Cargill’s attendance policy, which explicitly provided for progressive disciplinary action for unplanned absences. Unless they were on approved extended leave, employees were required to report their absences daily using Cargill’s automated call-in system. An employee would be charged one “occurrence” point for each unplanned absence and could accrue up to six occurrence points in a calendar year without disciplinary action. An employee’s seventh and eighth points would result in written warnings, and the ninth point would result in termination. Additionally, employees could be required to verify any absences from work. All verification had to be presented upon the first day the employee returned to work.

Rather than immediately terminating Lipp when she returned to work in October 2014, Cargill informed her that she had accumulated 194 occurrence points and placed her on “Last Chance” for attendance. Consequently, any call-ins, tardies, or early dismissals without authorization would result in termination. Two weeks after returning to work, Lipp called in to report she would be absent. When she returned to work without providing medical verification for her absence, Cargill terminated Lipp under the attendance policy.

Lipp filed an action alleging intentional discrimination and failure to accommodate under the Iowa Civil Rights Act and the ADA. Analyzing both statutes in the same manner, the district court ultimately granted summary to Cargill on all claims. Lipp appealed.

Eighth Circuit Affirms Summary Judgment Ruling

On appeal, the Eighth Circuit held that Lipp had no direct evidence of disability discrimination and could not establish a prima facie case of disability discrimination because she was not a qualified individual with a disability. Specifically, “Lipp ha[d] not demonstrated that at the time of her termination she could regularly and reliably attend work, an essential function of her employment.” In explaining that attendance was an essential function of Lipp’s job, the Eighth Circuit emphasized the language of Cargill’s written attendance policy, which stated that “punctuality and regular attendance [was] crucial for efficient plant operations, safety, and morale.” The Eighth Circuit also noted that all of Lipp’s listed activities in Cargill’s written job description required being present on Cargill’s premises.

When Lipp surprisingly argued that her 194 absences were not excessive, the Eighth Circuit ruled that her 194 unauthorized absences “far exceeded” what qualified for termination under Cargill’s policy. Even more importantly, the Court added that “persistent absences from work can be excessive even when the absences are with the employer’s permission.”

Regarding Lipp’s failure to accommodate claim, the Eighth Circuit held that the ADA did not require Cargill to provide an unlimited absentee policy or eliminate the essential functions of Lipp’s job to accommodate her. Lipp’s desired accommodation—additional absences without timely medical verification and almost immediately following 194 days of unplanned absences—was not one that would enable her to perform the essential function of regular and reliable attendance. On the contrary, it would relieve her of that function. The Eighth Circuit highlighted how generous Cargill had been despite Lipp’s excessive absenteeism and explained that a denial of summary judgment would punish Cargill for giving Lipp another chance instead of promptly terminating her before she returned to work in October.

Learning from Cargill

This case demonstrates the necessity of engaging in the interactive process, working diligently with disabled employees to maintain their employment, and communicating job requirements clearly and continuously. When confronting issues regarding absenteeism, keep these points in mind:

  • Make sure employees understand both your attendance policy and progressive discipline policy. Explain them verbally and give them a written copy. When absenteeism is adversely impacting the work environment, reiterate the policies (and maybe give the employee another copy).
  • Review the employee’s essential job functions, and be able to explain why attendance is essential for his or her position. Discuss the impact on other employees, customers and/or the organization as a whole. It is helpful if written job descriptions make clear that attendance is necessary.
  • Carefully assess when absences should be deemed authorized or unauthorized. Require medical verification as soon as possible after the employee returns to work from an absence.
  • Be flexible when you can be. Consider the employee’s disability and specific circumstances when determining what reasonable accommodations are feasible.

Crosstown Traffic! Facts Surrounding Employee’s ADA/FMLA Request to Avoid Bad Traffic Not Enough Not all requests for accommodation or FMLA leave will fit into neat boxes like “pregnancy” or “knee surgery.” Because the ADA definition of a disability includes any impairment that affects a major life function, employers are starting to see some more creative requests around the margins. In Trautman v. Time Warner Cable Texas, LLC, the Fifth Circuit recently dealt with an employee’s requests under both the ADA and FMLA to address her “anxiety/panic attacks” related to driving in bad traffic. Buckle up, while we try to unpack this situation!

Road Anxiety—ADA Path

Heather Trautman worked at Time Warner from October 2012 until April 2015 in a position that required her to be in the office to interact with other members of her team at certain times. After she became pregnant in 2013, she suffered several panic attacks while driving to or from work. Her obstetrician suggested that she leave work earlier to avoid driving in heavy traffic. Although Ms. Trautman did not submit an ADA accommodation request for her driving issues, her supervisor agreed to let her temporarily modify her work schedule.

After Ms. Trautman gave birth, she took FMLA leave, returning to work in March 2014. She told her supervisor that she was struggling to transition her baby to bottle feeding and asked if she could temporarily work from home. Her supervisor requested a doctor’s note but agreed to the temporary change—and Ms. Trautman worked from home for the remainder of 2014.

In December 2014, Ms. Trautman’s new supervisor told her she needed to resume working from the office starting in mid-January. The new supervisor was concerned Ms. Trautman was not performing necessary job duties that required her presence in the office. Ms. Trautman asked that she be allowed to work from home, and her supervisor said not unless she had a doctor’s note and a formal accommodation request approved by HR.

At that point, Ms. Trautman submitted a formal ADA accommodation request asking to work from 7 a.m. to 2 p.m. in the office and the remaining hours at home. The reason given was that her family physician said she had functional limitations of “anxiety/panic attacks related to traffic/driving.” The 2 p.m. departure was to allow her to avoid the heavy traffic. Time Warner denied the request because her job required her to work from the office during normal business hours. However, it did offer to adjust her schedule to 7 a.m. to 4 p.m. so she could leave the office earlier. Significantly, Ms. Trautman never tried the 4 p.m. departure time. Instead, she submitted another letter from her physician, and this time said she would be willing to leave the office at 11:00 a.m., so she could accommodate any busy afternoon work from her home. Time Warner again tried to get her to consider the 4 p.m. departure time, or even public transportation or ride sharing, to avoid her anxiety. Ms. Trautman again refused to try the 4 p.m. exit and also refused any other accommodations.

Trautman Takes Another Route—Intermittent FMLA Leave

With her ADA accommodation request at a standstill, Ms. Trautman began another plan—she started submitting intermittent FMLA leave requests that would let her depart the office early. She made those requests through Time Warner’s third-party administrator for leave requests—Sedgwick Claims Management Services. Ms. Trautman submitted paperwork from her physician saying that she needed to leave the office no later than 2 p.m. when her high-traffic anxiety flared up. Sedgwick approved her for one hour of FMLA leave per week for six months, but denied her request for any FMLA leave that would exceed that amount.

Ms. Trautman was missing work for numerous reasons at this time and received a written warning for her attendance. Her supervisor checked with Sedgwick to make sure that they were not counting FMLA leave against Ms. Trautman. Ms. Trautman continued to miss work. She was issued another warning pointing out that she had been absent for 22 days in the first three months of the year. She was warned that another write-up would result in termination. On the same day she received the write-up, she submitted a new doctor’s note to Sedgwick seeking an increase in her FMLA leave. Sedgwick agreed to increase the leave, but only as of the date they received the new paperwork — it did not retroactively approve any of her past absences as FMLA-covered. Ms. Trautman then began to take her increased leave. However, her unapproved absences continued, and Time Warner ultimately terminated her for excessive absenteeism.

Ms. Trautman filed suit claiming she was terminated in retaliation for her FMLA requests and that Time Warner failed to reasonably accommodate her ADA request relating to her anxiety about driving in heavy traffic. The lower court granted summary judgment on all of Ms. Trautman’s claims, and she appealed.

Fifth Circuit Drives it Home

The Fifth Circuit found that in examining whether Ms. Trautman’s absences were excessive, Time Warner had checked with Sedgwick to see if the time she missed was covered by the approved FMLA leave. It also noted that Time Warner’s reason for terminating her, excessive absenteeism, was not a pretext for FMLA retaliation. An employee’s failure to show up for work is a legitimate reason for firing her. The Fifth Circuit also stated that even if you subtracted the FMLA leave that eventually was approved, Ms. Trautman’s overall absences far exceeded the limits in Time Warner’s attendance policy. As such, there could be no claim for retaliation under the FMLA.

With regard to her ADA claim, the Fifth Circuit again found that there was no pretext in her termination. On the failure to accommodate claim, the Fifth Circuit noted Ms. Trautman did not engage in a flexible, interactive discussion about her accommodation request. She requested that she be allowed to leave at 2 p.m. When Time Warner denied that request, Ms. Trautman instead asked to leave at 11:00 a.m. The court stated “that’s not the stuff of flexible, interactive discussions.” It also bothered the court that Ms. Trautman never looked into other options, such as additional breaks or ride sharing. In the end, the court stated “neither the ADA nor the 2008 amendments to the ADA permits an employee to leave work early and then sue her employer for being unreasonable.”

How Does This Affect the Rules of the Road on FMLA and ADA?

This decision didn’t really alter the landscape, but it is a good example of an employer that did a decent job of trying to accommodate an employee who was asking for more than the company could grant. The Fifth Circuit noted several times in the opinion that Time Warner had allowed her to alter her work schedule, even though they weren’t absolutely required to do so. Time Warner apparently did a good job of communicating with Ms. Trautman, even if it was denying what she wanted. In addition, the court also found it significant that every time Ms. Trautman’s supervisor was looking to discipline her for being absent, she first looked to make sure those absences weren’t covered by the FMLA.

One of the lessons to be learned here is that when it comes to mental health, especially anxiety, employers need to be very careful to follow their usual procedures on ADA accommodation requests. In addition, even though Ms. Trautman had been working from home for the better part of a year, Time Warner had appropriate evidence to show that actual presence in the office was an essential function of the job. That evidence enabled the Fifth Circuit to state that failing to show up for work when required can be a basis for termination.