button Vol. 6
No. 2
Summer 2001


OSHA Revises Workplace Injury
and Illness
Reporting Rule.

line DOL Narrows Exemption for
Labor Relations Consultants.

line Interim Rules
Issued for Bush Executive Orders of Feb. 17th, 2001.

line FMLA: "Serious
Health Condition" Being Redefined.

line ADA: Medical Examinations / Inquiries Addressed by 3rd Circuit Court.
line Briefs
line Violence Updates (Briefs)

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button ADA: Medical Examinations / Inquiries
    Addressed by 3rd Circuit Court.

An appeal was recently denied to Randy L. Tice for damages under the Americans with Disabilities Act of 1990 (ADA) Tice worked for Centre Area Transportation Authority of State College (CATA).

Tice advanced three claims in his case:

(1) that CATA discriminated against him on the basis of disability by discharging him, on a pretextual basis - that is, whether an employee can establish that he is "regarded as" disabled by his employer solely by virtue of the employer's request for a medical examination;

(2) that CATA discriminated against him by requiring an improper medical examination as a condition of his return to work; - that is, that the scope of the ADA's limitations on employer mandated medical examinations and inquiries was exceeded and

(3) that CATA failed to safeguard his medical records properly - or that there was a violation of the ADA's provisions regarding the confidentiality of medical records and it constituted a per se compensable injury.

This appeal require the Court to interpret for the first time the ADA's provisions regarding permissible and impermissible medical examinations and inquiries, located at 42 U.S.C. S 12112(d).

Breakdown of charges in the case

1. Regarding the point of whether Tice was "regarded as" disabled by his employer, the court stated in its decision that:

"We ultimately conclude that an employer's request for a medical examination, standing alone, is not sufficient to establish that the employer 'regarded' the employee as disabled, and thus cannot itself form the basis for establishing membership in the protected class under the ADA."

The court did imply, however, that an improper medical examination request could be sufficient in some cases to demonstrate that an employee was regarded as disabled - depending upon the specific facts of the case.

BRAUN Consulting urges all employers to use caution whenever asking an employee to submit to a medical examination. Do a thorough analyses of what the examination is needed for and what the Employer will do with the results when the report is a "worst case" scenario.

2. Regarding the point of whether Tice was discriminated against by being require to submit an "improper medical examination" as a condition of his return to work the court stated:

"We interpret the ADA to permit medical examinations and inquiries upon a showing by the employer of job-relatedness and business necessity, and, because CATA has made such a showing in this case (which Tice has failed to rebut), we conclude that his claim of discrimination by way of an improper medical examination must also fail."

The ADA allows examinations or inquiries as to whether an employee has a disability or as to the severity of a disability, if such examinations or inquiries are job-related and consistent with business necessity. It also permits "inquiries" (but makes no mention of examinations) as to an employee's ability to "perform job- related functions."

Because of these two facts it is unclear whether examinations (as opposed to inquiries) are permissible to evaluate an employee's ability to perform job-related functions - even if such examinations aren't intended to discover the existence or severity of a disability.

The court noted that this "may leave an odd 'gap' in setting out the scope of permissible examinations and inquiries." The court concluded that the ADA permits "examinations and inquiries that, although perhaps not intended to discover whether an employee is 'disabled' within the meaning of the ADA, are job-related and consistent with business necessity."

Regarding Tice's charge that "that CATA failed to safeguard his medical records properly" the court stated:

"Finally, we join several of our sister circuits in holding that a plaintiff alleging a violation of the ADA's recordkeeping and examination requirements must demonstrate the existence of some actual damage in order to maintain his or her suit. Because Tice has not demonstrated that he suffered any injury as a result of CATA's recordkeeping violations, he cannot prevail on this claim. Therefore, we will affirm the judgment of the District Court."

The sister courts referred to in this Decision are the 5th, 8th, and 10th circuits.


The ADA can be complicated and tricky to interpret. It is necessary to follow the various court rulings and interpretations to determine how to deal with each factual situation and their corresponding issues each time they arise.

The "odd 'gap'" in setting out the scope of permissible examinations and inquiries is one such area of ambiguity.

6. Briefs Next Page

The Contents of this News Letter are intended for general information
and should not be construed as legal advise or opinion.
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