Can You Ask an Employee Returning from Leave Whether His Condition is ‘Chronic’?

By Kate McGovern Tornone, Editor

It may be risky to ask an employee returning from medical leave whether his illness is “chronic,” a recent court opinion illustrates. Such an inquiry, unless job-related and consistent with business necessity, may violate federal nondiscrimination laws.

The U.S. District Court for the Western District of Louisiana reached this conclusion in a case involving the City of Shreveport’s police department.

The employee who filed the lawsuit, Fred Taylor, said that the city requires officers returning from sick leave to have their healthcare provider complete a return-to-work form. The form asks the provider to indicate, among other things, whether the condition that caused the absence “is chronic and whether intermittent absence related to the condition may be possible.”

This question, Taylor alleged, violates Section 504 of the Rehabilitation Act of 1973 (the Americans with Disabilities Act’s (ADA) public sector counterpart). Both that law and the ADA prohibit medical inquiries that are intended to reveal or necessarily reveal disabilities, unless they are job-related and consistent with business necessity. The inquiries also must be no broader than necessary.

The police department, however, asked the court to dismiss Taylor’s claims, arguing that its policy meets the “job-related and consistent with business necessity” standard because:

1. It allows the employer to determine whether an officer can perform the essential functions of his or her job;
2. It ensures the safety of other officers;
3. It assists the department in scheduling officers to ensure adequate police coverage; and
4. It allows the department to determine whether additional medical examination is necessary before allowing an officer to return to work.

The court, however, said that none of the employer’s reasons met that standard.

While the court acknowledged that police departments must be allowed to ensure that officers can perform the essential functions of their jobs, Shreveport’s department was not able to show that its question was narrowly tailored and no broader than necessary.

Generally, federal law only allows an employer to make such inquiries if it has a legitimate, nondiscriminatory reason to doubt the employee’s ability to work. “Taking a few days of sick leave, by itself, does not constitute a legitimate, non-discriminatory reason to doubt a law enforcement officer’s ability to perform his duties,” the court said. Moreover, the inquiry makes no exceptions for chronic conditions that wouldn’t affect job performance or attendance, it added.

The department’s “officer safety” argument also was not sufficient to show that the inquiry was narrowly tailored. The question is generic and does not limit itself to chronic conditions that could endanger other officers, the court said.

The same goes for the department’s scheduling argument. The request is not limited to conditions that could impede the employer’s ability to schedule officer shifts, it found.

Finally, the employer failed to show that further medical testing, by itself, is a business necessity, the court said. The fact that the chronic-condition question is only asked when a healthcare provider clears an officer for full duty undermines that argument. “Because the officer would already be cleared for work when disclosing a chronic condition,” the court said the department shouldn’t need to conduct further tests.

Because the police department failed to show definitively that its reasons for asking the chronic-condition question were job-related and consistent with business necessity, the court declined to dismiss Taylor’s claims (Taylor v. City of Shreveport, No. 13-2227 (W.D. La. August 24, 2016)).

Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR.ComplianceExpert.com and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.