EEOC: Asking Employees to Explain Medical Absences Violated ADA

Asking an employee to explain the nature of an illness that has kept them out of work violates the Americans with Disabilities Act, the Equal Employment Opportunity Commission is arguing in an ongoing California case.

The commission sued retailer Dillard’s, which maintained a written policy requiring employees returning from sick leave to submit a doctor’s note stating “the nature of the absence.” This question amounted to an unlawful medical inquiry under the ADA, the commission alleged in its suit — and a federal district court agreed.

The ADA prohibits employers from asking whether an employee is an individual with a disability or about the nature or severity of a disability, unless the questions are job-related and consistent with business necessity.

“Dillard’s Attendance Policy, on its face, permitted supervisors to conduct impermissible disability-related inquiries under [the ADA],” the court found. “The Policy specifically required employees to disclose their underlying medical condition, and gave as examples migraines and high blood pressure. Yet these are conditions which may evidence a disability,” it said.

Dillard’s could have required its employees to submit a doctor’s note specifying the date on which the employee was seen, stating that the absence from work was medically necessary, and stating the date on which such employee would be able to return to work, the court suggested. Instead, it “required the employee to submit a doctor’s note disclosing the underlying condition for which she was treated. Such Policy invites intrusive questioning into the employee’s medical condition, and tends to elicit information regarding an actual or perceived disability. Absent a showing that the Policy was job-related and consistent with business necessity, it violates [the ADA].”

Dillard’s tried to show that the questions were job-related and consistent with business necessity, but the court was again unconvinced. There was no reason Dillard’s needed to know the nature of the employee’s medical condition, the court concluded.

In denying Dillard’s request for summary judgment, the court has allowed the case to continue. (EEOC v. Dillard’s Inc., No. 08cv1780-IEG(PCL), 2012 WL 440887 (S.D. Cal. Feb. 9, 2012))

Circuit courts are split on the question of unlawful medical inquiries under the ADA. In 2003, the 2nd U.S. Circuit Court of Appeals determined that requesting a “general diagnosis” from employees on sick leave violated the ADA’s prohibition on asking questions that may tend to reveal a disability. (Conroy v. New York Department of Correctional Services, 333 F.3d 88 (2d Cir. 2003)) The 6th Circuit, however, recently determined that a policy requiring employees returning from sick leave to state the nature of their illness was not necessarily a question about whether the employee is disabled. (Lee v. City of Columbus, 636 F.3d 245 (6th Cir. 2011)) The Dillard’s case falls under the 9th Circuit’s jurisdiction, but the court has not yet addressed the issue.