Employers Be Cautious When Drafting Your FFDE Cover Letters – Inquiries Must Be Narrowly Tailored

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It cannot be overstated that preparing a narrowly tailored FFDE cover letter to the evaluating physician (or, similarly, a medical questionnaire to the employee) is crucial to reducing employer liability.

In Scott v. Napolitano, a discharged employee brought an action against his former employer, the Federal Protective Service (“FPS”) of Los Angeles, claiming among other things, that questions posed by the employer on a medical examination form and during a fitness for duty evaluation were not narrowly tailored to address the employee’s current ability to work, and as such, would not support the employer’s business necessity defense. The Court agreed with the Plaintiff.

Plaintiff’s Reported Medical & Psychological History

The Plaintiff, a federal protective officer, had a long history of reported medical and psychological conditions:

• November 1998: Plaintiff was diagnosed with an adjustment disorder with mixed depression and anxiety and was placed on work stress disability for several months.
• July 2000 – February 2002: Plaintiff placed on long-term disability.
• August 2000: Plaintiff filed a Workers’ Compensation claim for his adjustment disorder.
• January 2001: Plaintiff underwent an independent psychological evaluation and was diagnosed as suffering from an adjustment disorder with mixed depression and anxiety with a corroborating diagnosis of chronic work-related adjustment disorder to include a stress-related physiological response affecting medical condition
• Spring 2004: Plaintiff filed a 2^nd Workers’ Compensation claim for sinusitis/rhinitis which were allegedly exacerbated by wildfires and construction at the Plaintiff’s office.
• September 2004: Plaintiff reported to his supervisor that he had been diagnosed with a work-related tendonitis of the upper right arm and shoulder. A medical impairment form from his treating physician indicated that Plaintiff was restricted for a period of 7 calendar days from grasping, hand motion, pushing, pulling, reaching above his shoulder or lifting with his right hand.
• October 2004: Plaintiff submitted a 3^rd Workers’ Compensation claim for repetitive motion injury causing pain in his upper arm, shoulder and neck.
• January 2005: Plaintiff advised his supervisor that he had developed another upper respiratory infection due to construction work at his office and that he’d be filing another Workers’ Compensation claim later that month.

In early 2005, concerned that the Plaintiff was unable to perform his full range of duties, FPS revoked his law enforcement authority. FPS directed the Plaintiff to undergo physical and psychiatric exams and that he would remain in non-law enforcement status until he successfully passed the exams. There were 2 sets of questions at issue in this case.

1^st Set of Questions @ Issue: Medical Fitness for Duty Evaluation

The first set of questions were part of a medical questionnaire presented to him during his medical fitness for duty evaluation:

• Have you ever been treated for a mental condition? (If yes, specify when, where, and give details)
• Have you ever had any illness, injury, or other condition (including learning disability, attention deficit disorder,) other than those already noted? (If yes, specify when, where and give details)
• Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past years for other than minor illness?(If yes, give complete address of doctor, hospital, clinic, and details.)
• Have you ever received, is there pending, or have you applied for pension or compensation for existing disability? (If yes, specify what kind, granted by whom, and what amount, when, why)
• Have you or do you currently experience any of the following: psychiatric/psychological consult, episodes of depression, periods of nervousness? Please specify.
• List all medication (prescription and non-prescription) you are currently taking with dosage and [f]requency, and reason below.

The Plaintiff refused to answer Questions 1 – 5, and in response to Question 6, wrote: “I am not taking any medications that would impair my ability to perform my position.” The FFDE physician stated that due to the Plaintiff’s failure to complete the questionnaire (and release his medical records), the information available to him at the time was insufficient to provide a medical determination as to the Plaintiff’s fitness for duty.

After refusing to complete the questionnaire and failure to release medical records, Plaintiff was put on a 14 day suspension.

2^nd Set of Questions @ Issue: Questionnaire from Employer HR Manager

The 2^nd Set of Questions came from an in-house Mission Support Chief. The questions were based on those that the Plaintiff had previously refused to answer during his medical fitness for duty evaluation:

• Have you ever had a learning disability or attention deficit disorder?
• Have you ever been treated for a mental condition? (If yes, specify when, where and give details)
• Have you consulted or been treated by clinic, physicians, healers, or other practitioners for other than minor illness? (If yes, give complete address of doctor, hospital, clinic, and details)
• Have you ever received, is there pending, or have you applied for pension or compensation for existing disability? (If yes, specify what kind, granted by whom, what amount, when and why)
• Have you had a psychiatric/psycho logic consult?
• Have you had episodes of depression?
• Have you had problems with anxiety?
• Describe all medication (prescription and non-prescription) you are currently taking with dosages, frequency, and reason for taking the medication.

The Plaintiff refused to answer the questions or release medical records and was terminated by FPS in January 2007.

Court’s Holdings

The District Court for the Southern District of California noted that ensuring an armed officer can perform his job properly and safely is a business necessity but emphasized that the issue in this case was whether the challenged questions were a reasonably effective method of achieving that goal. In this case, the questions were disability-related inquires that were not narrowly tailored to assessing whether the Plaintiff could perform the essential functions of his job.

The Court stated:

“All of the questions broadly seek information about illnesses, mental conditions, or other impairments Plaintiff has or had in the past. The questions were not narrowly tailored to address Plaintiff’s current ability to work.

• The first question, which asked if Plaintiff had ever been treated for a mental condition, was not limited in time and would include, for example, a childhood phobia or a long-resolved eating disorder.
•  The second and third questions are even broader because they are not limited to mental conditions and would include, for example, a past episode of appendicitis or a bad bout of eczema.
• The fourth question is ambiguous and overbroad in that it does not define “disability” and does not distinguish between job-related and non-job-related disabilities.
• The fifth question is not limited in time, does not address the severity of the “nervousness” or “depression,” and extends to any type of pscyhiatric/pscyhological consult, such as grief counseling.
• The sixth question, which asks about all types of drugs, including prescription and non-prescription, is intrusive and not tailored to determining whether an employee is using a drug that may affect his ability to do his job. In answering this question, a person would have to reveal whether they were taking any medication, including Advil, birth control, or Viagra. Given the scope of these questions, Defendant cannot satisfy its burden of establishing that the inquiries were ‘no broader or more intrusive than necessary’ to accomplish its goal of ensuring that Plaintiff could still safely do his job.”

Interestingly, the defendant employer argued that it should not be held liable for inquiries made by medical contractors (the FFDE physician). However, the case that the employer relied on to support its argument involved questions regarding assault and alcoholism that were asked as part of an MMPI–2 test. Outside health professionals had chosen to administer the test during a psychological evaluation and there was no evidence that the county defendant had any idea that such questions would be asked. In this case, the questions were part of a form titled “GSA/FPS Pre-placement and Incumbent Medical Exam Form” and it was unlikely that FPS had no knowledge of this form. Moreover, in this case, after the Plaintiff had refused to answer the questions, FPS insisted that he answer the questions or be subjected to discipline

The “Take Home” Message

Business necessities may include ensuring workplace safety or curbing egregious absenteeism, but an employer must show that a subsequent examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary. An employer does not need to show that the examination or inquiry is the only way of achieving a business necessity, but rather, the examination or inquiry must be a reasonably effective method of achieving the employer’s goal.

The EEOC stresses that the scope of exams be limited to determining whether the employee is currently able to perform the essential functions of his or her job. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave is all that is warranted. An employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

Finally, it’s important to note that under Ninth Circuit law, an individual does not have to be a “qualified individual with a disability,” as defined in 42 U.S.C. § 12111(8), to have standing to invoke the ADA’s protection against improper medical examinations and inquiries.

What does this mean for employers?

There is a lower standing threshold for employees looking to challenge the legality of medical examinations and inquiries as compared to other ADA violation claims. Accordingly, employers must be vigilant when drafting cover letters to the physicians conducting their employees’ medical and psychological evaluations. When drafting cover letters and medical questionnaires directed to the FFDE physician and/or employee, ask yourself:

• Are the questions narrowly tailored?
• Are the questions ambiguous?
• Are the questions overbroad?
• Are the questions limited in time?
• Are the questions limited in scope?
• Are the records we are seeking limited to those that are directly related to the medical or psychological condition at issue?
• Do the questions seek information pertaining directly to the employee’s current ability to perform his or her essential job functions?
• Do the questions genuinely serve the business necessity that warrants the evaluation?

 

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