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Asking for Test Results Is OK if a ‘Business Necessity’

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in FMLA Guidelines,Human Resources

Issue: The ADA prohibits you from seeking medical information simply to find out if the person has a disability.

Benefit: You can, however, seek such details to discover whether a person is medically fit to perform the job duties.

Action: Don't shy away from every medical inquiry; just make sure it's based on a legitimate business necessity.

When an employee encounters a medical problem, don't fear asking for more details or requiring medical tests, as long as you can prove that your requests are focused on whether the employee can perform the job.

Rule of thumb: Make sure your inquiry is no broader or more intrusive than absolutely necessary.

The ADA says you typically can't ask questions (or request medical test results) to find out if an employee has a disability or to discover the severity of the disability, unless such inquiries are "job-related and consistent with business necessity."

That exception is satisfied when you have a legitimate, nondiscriminatory reason to doubt that the employee can perform his or her job's duties.

Also, remember to keep confidential any medical information that you obtain.

Case in point: When one of its drivers returned from FMLA medical leave, a bus company asked for his lab test results to see if the driver was fit for duty. The driver refused, so the company withdrew his driver certification and placed him on restricted work status.

The driver sued, claiming the request violated the ADA. But a trial court (and the 2nd Circuit appeals court) sided with the bus company, saying the medical test request was "consistent with business necessity" and a reasonable way to determine if he could drive safely: something the driver had questioned himself. (His FMLA application noted that he was unable to perform the job and would likely need intermittent leave.)

As a result, the company had a legitimate, nondiscriminatory reason to doubt the driver's capacity to perform his job. (Gajda v. Manhattan and Bronx Surface Transit Operating Authority, No. 04-0608-cv, 2nd Cir., 2005)

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