Disability-Related Inquiries in Uncertain Times

Trying to verify the legitimacy of any employee’s request for sick leave has long been a prickly issue for employers. A doctor’s slip stating the employee has been “under the physician’s care” and can “return to work” is hardly illuminating on the questions of whether the illness sufficiently justified the leave and whether the employee can perform the job. Some employers have required meaningful physician’s notes through a policy requiring all employees returning from sick leave (usually limited to a leave over three workdays) to provide a physician’s note specifying the “general diagnosis” or the “nature of the illness.” Is this lawful under the medical-inquiry provisions of the Americans with Disabilities Act, 42 U.S.C. § 12112(d)(4)(A)? The Sixth Circuit recently answered “yes” to this question. The Equal Employment Opportunity Commission (EEOC) takes the opposite position, and a California district court recently agreed. These decisions shed light on how far Tennessee employers can go to meaningfully enforce sick-leave policies.

Disability-Related Inquiries Under the ADA

First, EEOC guidance on the ADA will put the issue in perspective. The ADA provides that employers cannot “make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”[1] This restriction on disability-related inquiries applies to all employees, not just those with disabilities.[2]

An employer’s compliance with the disability-related inquiry restrictions of the ADA depends on: (1) whether the employer actually made a disability-related inquiry, and (2) if so, whether the inquiry is job-related and consistent with business necessity.

What Constitutes a Disability-Related Inquiry?

The EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations under the Americans with Disabilities Act provides that a disability-related inquiry “is a question (or series of questions) that is likely to elicit information about a disability.”[3] Such questions include: asking an employee whether he or she has ever been diagnosed with a disability; asking an employee to provide medical documentation regarding his or her disability; asking about an employee’s workers’ compensation history; or asking an employee whether he or she currently is taking any prescription drugs or medications. However, asking general questions about an employee’s well-being (e.g., How are you?) or if he/she is “feeling okay” are not likely to elicit information about a disability and are thus permissible. Asking about non-disability related conditions such as pregnancy (e.g. How are you feeling? or When is your baby due?) are also permissible.[4]    

Is the Inquiry Job-Related and Consistent with Business Necessity?

An employer may nevertheless pose disability-related inquiries to employees if the questions are job-related and consistent with business necessity. An inquiry is “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”[5] The burden is on the employer to establish the business necessity defense, and this standard has been considered quite difficult to meet.[6]

The EEOC has directed that an employer may require verification of disability if an employee requests a reasonable accommodation. The EEOC’s medical-inquiry Guidelines state:

7. May an employer ask an employee for documentation when s/he requests a reasonable accommodation?
Yes. The employer is entitled to know that an employee has a covered disability that requires a reasonable accommodation. Thus, when the disability or the need for the accommodation is not known or obvious, it is job-related and consistent with business necessity for an employer to ask an employee for reasonable documentation about his/her disability and its functional limitations that require reasonable accommodation.

Id., Question 7. “Documentation is sufficient if it: (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 accommodation is needed.”[7]

The EEOC has also issued an Enforcement Guidance on reasonable accommodation.[8] It broadly defines a request for reasonable accommodation as “any change in the work environment or in the way things are customarily done.”[9] “Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability.”[10]

The foregoing Guidance statements as a whole support employer’s argument that requesting use of accrued sick leave or unpaid medical leave is a request for a reasonable accommodation triggering the employer’s right to inquire why the employee needs the time off. This interpretation is supported by another section of the Guidance on disability-related inquiries, which provides:

15. May an employer request an employee to provide a doctor’s note or other explanation to substantiate his/her use of sick leave?
Yes. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his/her use of sick leave by providing a doctor’s note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so.[11]

Despite seemingly clear guidance from the EEOC, two recent cases have come to vastly different conclusions as to what documentation an employer may request to substantiate an employee’s use of sick leave. A comparison of these two cases will shed some light on what is and is not permissible in regard to leave documentation, at least in Tennessee. It also makes clear that the EEOC does not agree with the Sixth Circuit’s position.

Lee v. City of Columbus[12]

The City of Columbus required employees returning from more than three days of sick leave to submit a copy of their physician’s note stating the “nature of the illness” to the employee’s immediate supervisor.[13] A class action suit was brought under the Rehabilitation Act, instead of the ADA.[14] The Sixth Circuit held, however, that “the ADA’s limitations on the disclosure of medical information set forth in 42 U.S.C. § 12112(d) are incorporated by reference into the Rehabilitation Act.”[15] The Lee court held that it “did not find the requirement that the employee provide a general diagnosis — or in this case, an even less specific statement regarding the ‘nature’ of an employee’s illness — to be tantamount to an inquiry ‘as to whether such employee is an individual with a disability or as to the nature or severity of the disability’ under § 12112 (d)(4)(A).”[16] The court further held that even if it was a medical-related inquiry, under the EEOC Enforcement Guidance: Disability Related Inquiries, Question 15 (quoted above), the inquiry was “not prohibited by the ADA because it is a workplace policy applicable to all employees, disabled or not.”[17]

The Lee court expressly rejected the Second Circuit’s holding in Conroy v. New York State Dep’t of Correctional Services, 333 F.3d 88 (2nd Cir. 2003) that because an employer’s request for a “diagnosis” upon an employee’s return from sick leave “may tend to reveal” a disability, the request constitutes a protected disability-related inquiry under § 12112(d)(4)(A) of the ADA.[18] The Lee court held that the “may tend to reveal” standard espoused in Conroy, “has unnecessarily swept within the statutes’ prohibition numerous legitimate and innocuous inquiries that are not aimed at identifying a disability.”[19] Instead, the Sixth Circuit reviewed the issue of whether the City’s policy “intended to reveal or necessitates revealing a disability.”[20]

The court’s holding in Lee was two-pronged: (1) requesting a doctor’s note describing the “nature of the employee’s illness” is not a disability-related inquiry because it would not necessarily elicit information about whether the employee had a disability; and (2) even if it was a disability-related inquiry, it is not prohibited by the ADA because it was applied to all employees, disabled or not.[21] The court never reached the business necessity issue because it found that the inquiry was not disability-related.

EEOC v. Dillard’s Inc.[22]

In this case, Dillard’s required employees returning from sick leave to provide a doctor’s note disclosing the “nature of the absence (such as migraine, high blood pressure, etc.”).[23] After an ADA class action was brought contesting the policy as a violation of § 12112(d)(4)(A), Dillard’s filed a motion for summary judgment. The district court denied the motion, relying on the lower “may tend to reveal a disability” standard of Conroy, and refusing to follow Lee. The district court specifically pointed to the two examples Dillard’s had used in its policy (migraines and high blood pressure), holding that these “are conditions which may evidence a disability.”[24]

Dillard’s argued that even if its policy constituted a disability-related inquiry, it was permissible under the business necessity defense because it “served the overlapping purposes of verifying the legitimacy of the medical absence and effectively permitting only verifiable medical absences to be excused.”[25] The court disagreed, holding that at least up to that point, Dillard’s had not presented sufficient evidence to satisfy the business necessity defense.[26]

Conclusion

These conflicting decisions exemplify the challenges employers face when managing health-related absences and leave in an ever-changing legal environment. How do we reconcile the Lee and Dillard’s decisions? First, remember that Dillard’s was only denied summary judgment — while that’s a tough blow for employers, the case has yet to be fully decided on the merits. Dillard’s may still convince the court that its requests for doctor’s notes are job-related and consistent with business necessity. Second, let’s wait and see what the Ninth Circuit does with this case. We may be looking at a growing circuit split, making this a tempting issue for Supreme Court review.

What does this mean for Tennessee employers and their counsel? For now, be vigilant — change may be on the way. If the lower standard (“may tend to reveal a disability”) from Conroy and Dillard’s becomes the norm, employers will likely need to revise their attendance policies to ensure they aren’t violating § 12112(d) (4)(A). At this point, however, Lee is a reported decision that, unless it is overturned, appears to support a Tennessee employer’s right to ask its employees the nature of the illness requiring their use of sick leave. Finally, if we can take anything from Dillard’s, it is this: the fact that the EEOC chose to prosecute the case reflects the agency’s current enforcement priorities, which are heavily focused on disability claims.

Notes

  1. 42 U.S.C. § 12112(d)(4)(A).
  2. Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), (EEOC, July 27, 2000) [EEOC Notice 915.002], http://www.eeoc.gov/policy/ docs/guidance-inquiries.html
  3. Id.
  4. Id., n. 28, citing 29 C.F.R. § 1630.2 (h) (1998) (pregnancy is not a disability for purposes of the ADA).
  5. Id.
  6. See Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009) (holding that “the standard to establish business necessity is quite high.”).
  7. See supra note 2.
  8. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (EEOC Oct. 17, 2002), http://eeoc.gov/policy/docs/accommodation.html
  9. Id. n.3, citing 29 C.F.R. § 1630.2 (o) (1997).
  10. Id. n. 48, citing 29 C.F.R. § 1630.2 (o) and Cehr v. Northeast Ohio Alzheimer’s, 155 F.3d 775, 782 (6th Cir. 1998).
  11. EEOC Guidance: Medical-Related Inquiries (Question 15).
  12. 636 F.3d 245 (6th Cir. 2011).
  13. Id. at 247.
  14. The ADA and the Rehabilitation Act, 29 U.S.C. § 791 et seq., both prohibit discrimination against the disabled, but the Rehabilitation Act, unlike the ADA, expressly prohibits discrimination solely on the basis of disability.
  15. Id. at 252.
  16. Id. at 254.
  17. Id. at 255
  18. 333. F.3d 88, 95 (2d Cir. 2003) (emphasis added.)
  19. Lee, 636 F.3d at 254.
  20. Id. at 255.
  21. Id.
  22. No. 08-cv1780-IEG(PCL), 2012 U.S. Dist. LEXIS 16945 (S.D. Cal. Feb. 9, 2012).
  23. Id. at *3.
  24. Id.at *15.
  25. Id. at *19.
  26. Id. (emphasis added.)

Edward Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW, a University of Tennessee College of Law third-year student, assisted with this article.