The 6^th Circuit Court of Appeals recently ruled that an employer has the right to require that employees returning to regular duty from a period of sick or injury leave or restricted duty provide a physician's note stating the "nature of the illness" and whether the employee is capable of returning to regular duty.  Employers may require employees to present such notes to their "immediate supervisor."

 

In this class action case, the Plaintiffs (current or former City employees) argued that the above policy of the City of Columbus, Ohio Division of Police ("City") violated the Rehabilitation Act, 29 USC § 791, and the "privacy" provisions of the First, Fifth, and Fourteenth Amendments to the United States Constitution through 42 USC § 1983.

 

The Rehabilitation Act prohibits discrimination solely on the basis of disability.  To prevail, a plaintiff must show that: (1) plaintiff is an individual with a disability; (2) plaintiff is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and (3) plaintiff suffered an adverse employment decision solely by reason of his handicap.  The Rehabilitation Act incorporates the Americans With Disabilities Act's limitations on the disclosure of medical information, but under both acts, an employer is permitted to make inquiries into an employee's ability to perform "job-related functions."

 

The 6^th Circuit held that the City's policy did not amount to a prohibited inquiry into an employee's medical disability within the meaning of the ADA because the "mere fact that an employer, pursuant to a sick leave policy, requests a general diagnosis that may tend to lead to information about disabilities falls far short of the requisite proof that the employer is discriminating solely on the basis of disability."  The Court explained that the proper analysis is "whether a medical inquiry is intended to reveal or necessitates revealing a disability, rather than whether the inquiry may merely tend to reveal a disability."  Further, the Court noted that, even if the policy could be characterized as a disability-related inquiry, the policy would not be prohibited by the ADA because it is applicable to all employees, whether they are disabled or not.  Because the implementation of the policy did not constitute an adverse employment action, the Court found that the Plaintiffs had failed to establish a prima facie case of disability discrimination under the Rehabilitation Act.

 

As for the City's requirement that the physician's note be provided to an employee's "immediate supervisor," the 6^th Circuit held that nothing in the ADA prohibited the City from designating an immediate supervisor as the initial contact for purposes of administering sick leave benefits and found that, under existing 6^th Circuit jurisprudence, "an informational-privacy concern of a constitutional dimension" was not implicated because a "fundamental right" is not involved. 

 

This case is important because it confirms an employer's right to make a general inquiry as to the nature of a returning employee's illness to assist in determining that the employee is cleared to return to regular duty.  If you have any questions about this decision or how it impacts your municipality, please contact John R. McGlinchey or Kristen L. Baiardi at (313) 566-2500.