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Asking for test results is OK in cases of business necessity

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in FMLA Guidelines,Human Resources

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 or exams are "shown to be job-related and consistent with business necessity."

The 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 from medical tests or medical certification forms.

Recent case: After returning from FMLA medical leave, a bus driver refused to provide lab-test results, including HIV test results, to his employer. The bus company asked for the results to determine if the driver was fit for duty. Denied, the company withdrew the driver's bus-operator certification and placed him on restricted work status.

Months later, the driver decided to submit the test results and was recertified for his position. But he sued anyway, claiming the request for medical information violated the ADA.

A trial court sided with the bus company, calling the medical-test request a reasonable way to determine if the employee could drive safely: something the driver had questioned himself. (His formal application for FMLA leave noted that he was unable to perform the job and would likely need intermittent leave "at undetermined times.")

A federal appeals court agreed. The company had a legitimate, nondiscriminatory reason to doubt the driver's capacity to perform his job. So, its medical-test requirement was "consistent with business necessity" and permissible under the ADA. (Gajda v. Manhattan and Bronx Surface Transit Operating Authority, No. 04-0608-cv, 2nd Cir., 2005)

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