Privacy, Business and Law

The Ninth Circuit Court of Appeals ruled recently that an employer did not violate the Americans with Disabilities Act (“ADA”) by requiring a former employee to provide a medical release before rehire. (Harris v. Harris & Hart, Inc., 9th Cir., No. 98-35949, 3/13/00).

The plaintiff, Roosevelt Harris, was a journeyman sheet metal worker, who worked for the defendant Harris & Hart, a federal government contractor, on two separate occasions for about three months each time. During his second term, he told the employer that he suffered from carpal tunnel syndrome and filed a grievance with his union, alleging that his employer failed to accommodate his disability. Shortly before the grievance was resolved, Harris resigned from his job.

Less than two weeks later, Harris was dispatched for another project with Harris & Hart, at which time the employer requested that he provide a medical release before returning to work. Harris refused and was denied employment. He filed a grievance over the employer’s refusal to hire him and the parties settled. Pursuant to the settlement, Harris & Hart agreed that Harris would not be precluded from future hire if the need arose and Harris was “qualified and physically able to perform available work.”

A year later, when Harris was again dispatched for a job, Harris & Hart asked for a medical release. Harris refused, was denied a job, and, after filing complaints with Oregon state agencies, filed suit under the Americans with Disabilities Act. Harris appealed to the Ninth Circuit after a federal judge granted summary judgment to the employer.
On appeal, Harris argued that in pre-offer applications and procedures, the ADA prohibits employers from conducting medical examinations or make inquiries of a job applicant as to whether he or she is an individual with a disability or as to the nature or severity of such disability.

However, the Court of Appeals rejected Harris’ argument, concluding that the employer’s requested medical release was permissible because it was similar to a progress report from a specialist treating a particular injury. The Court found that the ADA did not prohibit the employer from making inquiries of a former employee with a known disability, in order to determine what accommodations, if any, would be necessary. According to the Court, this situation is parallel to that of an injured employee returning to work. In that case, there would be no question regarding the requirement of a medical examination; “common sense dictates similar treatment of former employees with known disabilities.”

Thus, the Court concluded that the ADA’s prohibition on pre-employment medical examinations or inquiries does not apply to a former employee with a known disability. Employers subject to the ADA should note the key facts underlying the Court’s decision: the “applicant” in this case had previously been an employee and informed the employer of his disability and had requested accommodations for such disability. Only employers faced with the same situation may safely make pre-offer inquiries about known disabilities without violating the ADA’s intent of “avoiding employment judgments unfairly made based on disabilities rather than abilities.”