The Goodyear plant in West Tennessee had an employee with progressive multiple sclerosis. He worked for 10 years without issue but then his symptoms worsened, in part, by his medications. The employee insisted he could perform his job safely despite his condition. Management learned, however, that the employee was holding onto machinery for support and that his co-workers were helping him perform tasks that required him to climb stairs or ladders. A safety issue also arose regarding forklifts but this was not clearly explained by the decision.
Union representatives met with the employee to tell him Goodyear was going to require him to take a functional capacity examination ("FCE") to determine whether he could safely continue in his job with or without accommodation. The union also advised him that if he "failed" the FCE, Goodyear would likely terminate him but that he had the option to take a medical retirement and receive temporary disability benefits. He took the Union's advice, retired, and sued the company.
Because the employee retired in order to avoid the FCE he had to prove that Goodyear's FCE demand itself constituted an adverse employment action. Citing one of its decisions from 10 years ago, the court held that a "valid FCE demand cannot constitute an adverse action" in a disability discrimination claim (the court left it open whether it could be adverse in a retaliation claim but it would be a stretch there too). The employee argued the examination was not valid, i.e., that the FCE was not job-related nor consistent with business necessity, but (and this is the interesting part of the decision), the Sixth Circuit held that because the employee retired without undergoing the FCE, he could not establish that the examination would have been invalid. An employee, it seems, cannot assume the worst about an employer's demand to submit to a medical examination.
The Sixth Circuit's decision reinforces the employer's right to require an employee to provide accurate medical information. These demands are not to be taken lightly, however. The court stressed that Goodyear required the FCE for valid and specific reasons, job safety concerns, that were "position-specific" and clearly articulated. The EEOC has published Enforcement Guidance which helps to describe when Medical Examinations will be job-related and consistent with business necessity.
Suppose, for the sake of argument, the employee had refused the valid FCE demand? What remedy would the employer have had? Refusal to obey a clear (and legitimate) job requirement is insubordination. Smart employers, however, will not summarily fire an employee upon the employee's initial refusal. Instead, they should write the employee a memo explaining why the employer believes the medical examination is necessary (citing the specific facts) and leaves no room for doubt about what is being required. This memo (or a follow up memo) should unambiguously state that the refusal to undergo the FCE will be regarded as insubordination and will be dealt with pursuant to the employer's disciplinary policies. The discipline imposed for a continued refusal should, of course, be consistent with past disciplinary decisions.
Also remember that the ADA does not permit a medical examination whenever an employee's performance lags. Generally, the EEOC says, "[a]n employer must have objective evidence suggesting that a medical reason is a likely cause of the problem to justify seeking medical information or ordering a medical examination." In the Goodyear case, the medical reason was obvious. That is not always the case and some courts have held that an employee's refusal to undergo a medical examination that fails the ADA requirements is protected activity for which the employee cannot be fired. In that situation, the employer's reason for firing would be per se illegitimate. Thus, smart employers make sure there is no doubt that the examination is authorized by the ADA before imposing discipline.
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