Fourth Circuit Orders Trial for Long-Term Employee Subject to Invasive Medical Testing

In EEOC v. McLeod, the federal Fourth Circuit Court of Appeals reversed the dismissal below and held that a 28-year veteran employee with long-term medical concerns stated a claim of disability discrimination ripe for trial when she fell at work and suddenly was subject to medical-testing.  She had been performing her job with the same condition for decades.  By way of testing, she was declared unfit and fired.  No. 17-2335 (4th Cir. Jan. 31, 2019) (scheduled for publication).

Here, a veteran corporate newsletter writer suffered from a bone-related disability since birth.  It made her balance and strength in her lower body, especially, unstable.  She fell at work - not for the first time – and at home.  Under a relatively new supervisor, she was ordered to undergo a Functional Capacity Exam.  She failed, and thereafter, was fired. 

The U.S. Americans With Disabilities Act (“ADA”) prohibits employers covered by it from requiring staff to undergo medical exams unless it "is shown to be job-related and consistent with business necessity."  Id. at 8 (citing and quoting 42 U.S.C. § 12112(d)(4)(A)).  Was this a legitimate exam or not?  That was the Court’s primary question.

The federal trial court below dismissed the case, actually, on summary judgment under Federal Rule 56 of Civil Procedure.  It appears the trial court required more specific evidence to show that the medical exam was for anything other than for business necessity to hold a trial on the issue - before a jury of this employee’s peers.  However, the Fourth Circuit disagreed and remanded the case for further proceeding. 

The Fourth Circuit noted that this employee, suffering from a long-term bone disorder, had fallen before at work; she had been performing her newsletter job for 28 years well.  In other words, a jury would need to assess and decide if anything, really, had changed to require medical testing.

One takeaway here is that when a long-term, valuable employee with medical problems is subject to sudden medical testing, the legitimate "business necessity" must be given a 'hard look'.

This Fourth Circuit precedent of EEOC v. McLeod applies to federal courts in Maryland, Virginia and West Virginia, and North and South Carolina, and is persuasive authority in Maryland state court.

Gregg H. Mosson, Esq.

Mosson Law, LLC

www.mossonlaw.com