Not necessarily.
An employee who worked as a temporary receptionist and assisted in the employer’s accounting department desired full time work. After five months, the employer made her a conditional offer of full-time, permanent employment, conditioned on the employee passing a pre-employment medical exam conducted by a third-party vendor. Following the exam, the vendor’s physician, who never examined or questioned the employee, refused to approve her for employment with the employer because of the supposed side effects of her prescription medications. The employee provided the employer with a letter from her doctor stating that she was not impaired by her medications. However, the employer rescinded its job offer.
The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and received a “cause” finding. The EEOC attempted to reach a pre-litigation settlement through its conciliation process, but when the company rejected that option, the EEOC sued the employer on the employee’s behalf. The above facts are contained in the EEOC’s allegations. EEOC v. UPCO, Inc., Case No. 4:16-cv-00609-CVE-TLW.
After eight months of litigation in federal court, the employer agreed to settle this disability discrimination lawsuit by paying $106,000 and also furnishing other relief which requires the business to adopt policies that prohibit the unlawful use of employees’ and applicants’ medical information and to train its employees regarding the ADA. The settlement also enjoins the company from engaging in this type of disability discrimination in the future.
This case is similar to a case our firm reported last month where an employer likely believed that a long haul truck driver needs two arms and hands to safely control the rig.
The take home message is that although there is some intuitive logic to the employer’s safety concern, the ADA does not allow an employer to act on an unsubstantiated assumption. The ADA requires Florida employers to make individualized judgments based on reliable medical or other objective evidence (rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes).
Essentially, in order to comply with the ADA, a Florida business in this situation should realize that would need to establish through objective, medically-supportable methods that there is a significant risk that substantial harm could occur in the workplace, or that the employee cannot perform the essential functions of the job either with or without an accommodation.
The EEOC released statements after this settlement that remind Florida business owners that:
- workers should not fear losing their job - or being denied continued employment - because of an employer’s assumptions or stereotypes regarding certain medications.
- Federal law requires employers to conduct an individualized assessment of an applicant’s present ability to perform a particular job before screening out the applicant based on stereotypes regarding medications.
- Employers cannot avoid liability for unlawful discrimination by contracting out their human resources or employee screening functions and must be diligent to comply with the ADA when they rely on third-party medical vendors.
Florida HR directors and business owners are reminded that our firm recently reported here that eliminating barriers to recruitment and hiring is one of the EEOC’s six Strategic Enforcement Plan priorities for the next five years.
If your Florida company needs assistance in determining whether the ADA applies to your situation or if you need guidance in engaging in an interactive process with a disabled applicant or employee, please email or call the Law Office of David Miklas, P.A. at 1-772-465-5111.
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