Disabled employees may believe that their employers can never insist that they take a test related to the disability. That’s not true.
For example, if an employee has a known disability and is observed making safety-related mistakes, it’s perfectly reasonable to demand an assessment of whether the employee is capable of performing the job.
Recent case: Ross Margherita worked as a FedEx freight handler at Kennedy Airport, where he loaded and unloaded planes. Margherita has a hearing impairment and a speech impediment. Neither disqualified him from doing his job.
But then a supervisor noticed Margherita driving the wrong way and apparently ignoring hand signals and verbal warnings. That prompted FedEx to demand a hearing test and a communications test under field conditions. Margherita had to respond to a series of commands at various distances on a loading ramp. The results were inconclusive.
Following a second test, Margherita went on leave for stress and anxiety. When he returned, he was placed in a position that didn’t require him to use hand or voice commands. He received a raise and his benefits did not change.
He sued anyway, alleging that the tests were illegal under the ADA.
The court disagreed. It said that an employer that knows about a disability and notices safety issues can test the employee. It’s legal because the testing is designed to assess the ability to carry out one’s job, not determine if the employee is disabled. That makes it employment-related and consistent with business necessity. (Margherita v. FedEx, et al., No. 07-CV-4826, ED NY, 2011)
Final note: Margherita didn’t lose anything with his transfer to another position. That made it impossible for him to argue that he had been punished for being disabled.
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