When a law, such as the ADA, restricts an employer’s rights to take reasonable, measured steps to promote workplace safety, it ought to be re-examined.  Years ago, Justice Souter observed that preventing employers from considering "risk to self," an ADA rule many disability rights advocates had sought, would have put the ADA at "loggerheads" with federal OSHA policy requiring employers to ensure the safety of  "each" and "every" worker.  Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 85 (2002).

I have always thought that to be the case with the EEOC’s exceedingly narrow interpretation of the ADA rule that employee medical inquiries be "job-related and consistent with business necessity." As interpreted by the EEOC, that requirement invalidates employee medical evaluations or monitoring that are either: a) not grounded in individualized, fact-based concerns about an employee’s ability to perform essential job functions safely and successfully; or b) required by federal law or regulation.  In its Enforcement Guidance on Disability-Related Inquiries and Medical Examination of Employees under the ADA, the EEOC says periodic testing and medical monitoring of employees would be permissible in positions affecting public safety; but the Guidance limits those positions to firefighters and those involved in law enforcement and security.  It also narrowly construes the permissible breadth of such evaluations.  In an informal opinion letter issued on September 10, 2004, the EEOC declined to apply the exception to off-shore oil workers. Recent events in the Gulf illustrate the dangerous nature of oil rig work, as well as the impact on public safety should operations go awry.  

The Labor and Employment Law Blog reports that a California federal district court granted summary judgment in May to a security officer terminated after he refused to complete a medical questionnaire.  The court found the employer’s inquiries in the questionnaire were too broad to meet the ADA’s standard of being "job-related and consistent with business necessity."  In thinking about the decision, I couldn’t help but wonder whether a more narrowly tailored inquiry would be acceptable to the EEOC in most cases (perhaps in the case at hand, Scott v. Napolitano, a more narrowly-tailored questionnaire would have received EEOC approval because, as noted above, the EEOC seems to be okay with allowing narrowly-tailored monitoring of at least some security personnel).

It’s time to give greater consideration to the very real safety risks employees face everyday, and the moral and financial hazards employers face if they do not have effective tools to address them.  The EEOC’s presumption that  employers use employee medical information to discriminate is not as employee friendly as some might think.  Yes, some employers might misuse employee medical information but the ADA,  and state and local law, provide ample deterrence and remedies for doing so.  And the inability of employers to take reasonable, measured steps to proactively identify employee medical risks has its costs. Just ask yourself, what’s a worse outcome for an employee –being the victim of disability discrimination (for which he/she has a remedy) or suffering a potentially career or life-ending workplace injury?  

I say it’s in the vast majority of employees’ interests to interpret this ADA provision more broadly — to allow employers to verify an employee’s physical or mental ability to perform essential job functions safely and hold them accountable if they misuse or abuse that right.  The EEOC has the ability to interpret the standard of "job-related and consistent with business necessity" broader than it has to date.  It’s time to do so … let’s put an end to ADA-OSHA "loggerheads."