Frederick Thurman

Shumaker, Loop & Kendrick, LLP
Charlotte, NC
www.SLK-Law.com
FThurman@SLK-Law.com
(704) 375-0057

Frederick M. ("Derick") Thurman is a partner in the employment and labor law and litigation practice groups of Shumaker, Loop & Kendrick, LLP. His primary areas of practice are employment law and litigation (representing management). Derick also practices in traditional labor law (representing management); business torts; and general commercial litigation. Derick has extensive experience practicing employment law, labor law and commercial litigation, including appellate briefing and arguments in federal and state courts, jury trials, arbitration, and hearings before various government agencies. His practice also encompasses nonlitigation matters, such as personnel policy drafting and review, employment contract drafting and review, and employment law compliance counseling.

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Employers enter a legal minefield when they inquire about the health of applicants or employees. State and federal laws—such as the North Carolina Workers’ Compensation Act (WCA), the ADA and the FMLA—overlap, and any misstep can cause a litigation explosion.

Applicants and the ADA

Under the ADA, employers may not ask applicants about any potentially disabling conditions before an employment offer has been made.

Pre-employment inquiries about an applicant’s ability to perform job-related functions are allowed. For example, if driving is a job function, an employer may ask an applicant if he or she has a driver’s license. You may not ask if the applicant has a visual disability. As long as the questions are not phrased in terms of a disability, the questions may be extensive and detailed and may be directed toward both essential and marginal job-related functions.

You can also ask, “Can you perform the duties of this job, with or without reasonable accommodation?” or, “Can you meet the attendance requirements of the job?”

Employers may condition employment offers on the results of a pre-employment physical or medical examination, but only if the examination is job-related and all employees in the same job category are required to take it. Under the ADA, employers may not use medical examinations to screen out disabled but otherwise qualified individuals.

Although the ADA generally obligates an individual to notify an employer or prospective employer of a disability requiring accommodation, if a pre-employment medical exam reveals a limitation that you believe disqualifies the applicant from the job, you must show that there is no reasonable accommodation that would enable the individual to perform the essential functions of the job.

Employees and the ADA

Health-related inquiries and examinations for employees are permissible when they are job-related and consistent with business necessity.

According to the EEOC, once the need for accommodation has been revealed, an employer may require the employee to provide documentation that “(1) describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and (2) substantiates why the requested reasonable accommodation is needed.”

Inquiries and the FMLA

Under the FMLA, an employer may require medical information from an employee requesting leave due to the employee’s serious health condition, regardless of whether the condition amounts to a disability under the ADA.

You may require the employee to provide a certification issued by the employee’s health care provider. Any certification form used by an employer may seek only information related to the serious health condition for which the employee is requesting leave.

North Carolina’s WCA

Under the state WCA, injured employees are required to give an employer notice of a work-related injury, usually within 30 days, before becoming eligible for benefits.

Generally, an employer has the right to control the medical treatment received by an injured employee, although that right only attaches once you accept the claim as compensable. Moreover, you may obtain injury-related treatment records without the express authorization of your employee, and you may require an employee receiving benefits to have follow-up examinations.

Returning to work

When an employee on leave is ready to return to work, you can demand health certifications.

For FMLA leave, the statute provides: “As a condition of restoration ... the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work....” Certification may be sought only with regard to the particular health condition that caused the employee’s need for leave.

You may ask for more information if the employee is disabled under the ADA, and you need to determine whether the employee can perform the essential functions of the job.

If an employee takes leave for an injury compensable under the WCA and the leave is also designated as FMLA leave, FMLA regulations regarding medical inquiries and return to work certification are relaxed to the level of inquiry permitted under the WCA.

Often, when an employee is released to return to work from workers’ compensation leave, the return to work is conditioned on some restrictions (either temporary or permanent) on the ability to perform certain duties. If the employer seeks to offer a position suitable to the employee’s capacity, it may need more information than is provided in the doctor’s note. Anytime an employee is still claiming weekly benefits under the WCA, you may ask the employee to take a medical examination at your expense. If the employee refuses, benefits may be suspended.

Final note: Consult counsel with any return-to-work questions since other laws also affect what information you may be entitled to.