In a lawsuit filed in September, the Equal Employment Opportunity Commission (EEOC) alleges that a Minnesota-based power company violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) by requiring an employee returning from medical leave to execute overbroad medical release forms for a fitness-for-duty medical examination. In EEOC v. Cummins Power Generation, currently pending in the federal district court in Minnesota, the agency asserts that the employer violated both the ADA and GINA when it attempted to obtain certification that the employee was medically qualified to return to work from medical leave. The EEOC’s aggressive approach in this case suggests that employers may be well-advised to review policies and practices governing employees’ return to work following medical leaves of absence. 
Background
The case arose out of the employer’s request that the employee undergo a fitness-for-duty examination before returning to work. The complaint neither reveals the nature of the employee’s job duties nor the illness or injury underlying the request for a fitness-for-duty exam. However, the EEOC alleges in the lawsuit that Cummins Power required the employee to sign medical release forms that sought “irrelevant information” in violation of the ADA and GINA.
The company requested that the employee agree to release “all [of] his medical records, including all information concerning medical care, advice, treatment, or supplies . . . and all information relating to or forming the basis of any medical, mental health and/or substance abuse evaluation, recommendations and/or determinations.” He was also given a “diagnostic assessment form” that “specifically requested information regarding . . . family history involving psychiatric, chemical dependency, suicide, and major medical issues.” The EEOC claims that the release and diagnostic assessment forms were not narrowly tailored to the issue of whether the employee could perform the essential functions of the job or whether he posed a direct threat to the safety of himself or others, as they should have been.
The EEOC asserts that the requests constituted prohibited medical inquiries under the ADA because they were not job-related or consistent with business necessity. Moreover, the agency alleges that the requests would have required the disclosure of family medical history in violation of GINA. The employee refused to sign the requested medical releases and was therefore terminated, leading the EEOC to file a claim of retaliation on his behalf under both the ADA and GINA.
Alleged ADA violations
The gist of the EEOC’s ADA allegations is that the requested medical information was too broad and the employer made disability-related inquiries that weren’t job-related or consistent with business necessity. The agency’s press release announcing the lawsuit emphasizes that it approves of specific requests that are tailored to the job and notes that it “doesn’t challenge Cummins’ request for [a] fitness-for- duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue.”
According to EEOC guidance, an employer’s direct inquiry into disability-related matters or a requirement that an employee returning from medical leave submit to a medical exam is clearly permitted as long as the employer has a reasonable belief that the employee’s ability to perform essential job functions may be impaired or that he will pose a direct threat to safety. However, medical inquiries or exams must be limited to what is necessary to assess the employee’s ability to work.
The guidance specifically states, “Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability- related inquiries or requiring an unrelated medical examination.”
The ADA mandates that employers provide disabled employees with reasonable accommodations consistent with business necessity in a manner that doesn’t create an undue hardship. An employer is therefore entitled to obtain relevant job-related medical information from an employee returning from medical leave. The purpose of the fitness-for-duty examination and related inquiries should be limited to obtaining information to determine if the employee is able to perform the essential job functions, whether an accommodation is necessary to enable him to perform the essential functions, and whether there is a direct threat of injury to the employee or others. Properly focused, such an inquiry may help you obtain relevant medical information (with the assistance of a qualified healthcare provider as needed).
Alleged GINA violations
Obtaining information protected under GINA could be another story, however. GINA prohibits employers from using genetic information when making employment decisions and, importantly, restricts you from requesting, requiring, or purchasing genetic information. The Act also strictly limits the disclosure of genetic information. Such information includes an individual’s genetic tests and the genetic tests of individual family members, as well as information about family medical history.
There is no “business necessity” or “undue hardship” exception permitting inquiries into otherwise prohibited areas of inquiry under GINA. The EEOC says that when you request a return-to-duty medical exam (or other employee medical information), you must inform the examining physician not to provide your company with any family medical history. Of course, all medical records must be segregated from standard personnel files, and all medical information must be kept confidential.
Lessons to be learned
This case should serve as a reminder that any inquiry into an employee’s ability to return to work must be focused and specific. Information requests that aren’t relevant to the employee’s job and the impact of any disability on his ability to perform the job, with or without accommodation, could spell trouble. Employers ignore the “no fishing allowed” warning at their own peril.
Geoffrey D. Rieder is an attorney with Foster, Rieder & Jackson, P.C. in Albuquerque, New Mexico. He may be contacted at geoff@frjlaw.com.