Part 6 - Employer-Mandated Medical Exams Under the ADA

LIMITED-FOCUS exams permitted; whole-mind psychiatric excavations could be seen as privacy violation, if not assault.

(see here for links to each article in the series)

In this piece, we’re going to be looking at medical exams through the lens of the Americans with Disabilities Act (“ADA”).

In order to understand the role – and misuse of – medical exams in the world of work, the domain of most adults’ lives that occupies more than half of a person's awake time most days of the week, let's examine a fictional scenario outside of the healthcare arena.

(But, before we do … my customary disclaimer: I am NOT a lawyer, and this is NOT legal advice. Further, my recap of this complex law is based on my ongoing research and study, and on my conversations with legal knowledge experts. I offer here my layman’s interpretation of the law as best a non-JD can do. I may not have every aspect down. This is not intended to be a legal treatise. It is my hope that it simply gives readers a broad enough flavor of the law and its relevance so they can seek those who can help them apply it.)

Big Picture Scenario – Medical Exams in the Context of Worklife

Imagine this: you are a middle-level manager on a career escalator path within a large corporation. And your higher-ups have set high productivity and performance standards for you and your team. Like most achievement-oriented team-player people, you keep driving the operation forward.

Contextual Factors: “Making Book”

But let's say you cross paths in a bad way with one higher-up who didn't like your brash talk-back at a company meeting. Or perhaps a select group of your co-workers files an embellished complaint about your leadership behavior or your communication style; or someone high in the corporate machine just finds you a bit too problematic and “not a fit” for the company moving forward. (Gives a whole new meaning to the term fitness for duty – “with us”)

Realize that these seemingly peripheral incidents can serve an important contextual historical role in subsequent developments. They serve a purpose similar to what my dear friend, a retired electrician business owner, referred to as “making book on you.” 

Cumulative Debility Leading to Diminished Performance

Let's say also that the relentless stress of the work combined with some recurring major stress in your personal life – be it marital stress or a major parenting challenge, or perhaps a medical illness resulting in your periodic absenteeism – has led to your not meeting previously set business objectives. Someone in the higher-ups says, whether out of genuine compassion and concern or less altruistic motive, “We've got to send [that manager - you] for an evaluation,” usually meaning a psychiatric exam of some sort. And the company, with or without a compassionate demeanor, insists that you go for an evaluation to be done by the company's preferred shrink.

Let’s pause there for a moment and reflect. If this manager in the scenario were you, would you have any concerns so far?

The Company Shrink

Now let's say you actually do go to the company-preferred shrink (ahem, psychiatrist) you've been “referred” to.¹ And the shrink, somewhat wooden and emotionally flat as these sorts often are, seems sufficiently professional and pleasant. He does the full shrink interview thing including a few questionnaires, your childhood, your mother and father, use of alcohol and other drugs, and a mental status exam, and says “I think you're burned out, and probably depressed. And I think you need to be on an antidepressant and in psychotherapy.” This may or may not seem to you like a reasonable finding and suggestion. Nevertheless, nothing too consequential, you think.

And he then tells your boss you're not able to do your job effectively right now. And that in fact, based on what he’s learned, you seem to be making some erratic decisions and could be harming your team's overall productivity and well-being. In fact, there was one incident you disclosed to Dr. Sigfroid in which you described blowing up at a customer who nearly canceled their big contract. You admitted it was at an alcohol-fueled lunch meeting. And another incident where you opened up to a subordinate you told Dr. Sigfroid you were interested in romantically but hadn’t pursued, and how you got choked up and then you and the subordinate hugged. And then the subordinate reported concerns about this to HR and thought that the compassionate hug was inappropriate. You didn't know about any of this disclosure by him to your VP of Operations until later, as Dr. Sigfroid at that time said you signed a release and, as you didn’t pay for the examination, you weren't entitled to the report.

Let's pause again here. As the examined and PHI-disclosed manager, do you have any concerns at this point? Concerns about the selection of evaluator? The nature of evaluation? The findings and recommendations? The nature of the disclosures? Your inability to get Dr. Sigfroid’s report?

VP of Ops and HR Escort You Out of Building – For Your Own Well-being

After receiving the report, your VP of Operations and the head of HR appear at your door, accompanied by security, and tell you that, for your well-being and that of the team, you're being placed on leave immediately and are not to report to work nor have any contact with members of your team or any other employees. And to ensure this, you've been asked to sacrifice your building and office access pass (which they will electronically void anyway). All this, you are assured, just to be on the safe side, all for your well-being, and your team’s, and the company’s.

Pause again here. What's your feeling about these developments? Any concerns? What would you do here? Hire an attorney. What kind of attorney would you hire? Perhaps file a complaint? With whom? Is what they've done wrong? What's wrong about it? And even if you conclude it was wrong, what do you believe are your chances of prevailing? Are you going to sue? Who? For what? (You yourself agreed to go. You yourself admitted to Dr. Shrink that you were depressed, having a hard time coping. In fact, you even admitted to Dr. Shrink that at one point you thought you were losing it.)

One more pause here. What do you feel now? Honestly.

I ask this because I know that feelings are themselves messengers of psychological intelligence. They're trying to tell us something. As you explore your feelings, do you find anger? Are you feeling frightened? Sad? Embarrassed? Do you feel trapped, caught between a rock and a hard place, an experience we might call pain? Multiple of these? Perhaps all of these at once, a state I refer to as turmoil? Likely the last. It all feels so shocking, so unbelievable, so … wrong.

But, feeling it’s wrong and it actually being wrong are two different things. Is there anything “wrong” as in illegal or unethical in this scenario? Did your higher-up have the right to demand you get a psych evaluation? To coerce you to use the company's preferred psychiatrist? To communicate with that psychiatrist both before and after your evaluation? Did the psychiatrist have the right to do that comprehensive psychiatric evaluation with all those questionnaires and probing questions about your life? To arrive at those diagnostic conclusions and recommendations, and have them considered as infallible by your boss? To show his entire report to your boss and perhaps to other higher-ups? Not to let you have the report? To put you on indefinite leave? To prevent you from accessing the office? To publicize within the company, or to select people outside, the fact of your leave for these newly diagnosed medical reasons and the fact of your restriction of company access?

Feel Wrong ≠ Wrong

Surely this doesn't feel right.

But that doesn't make something actually wrong, other than in your own opinion. Although feeling something’s wrong can actually point us in the direction of defining the wrongness.

Are there any governing principles, whether ethical or legal, that have relevance here? Is there any law that governs such work-related medical and psychiatric examinations?

Wrongs, Principles Pertaining to Wrongs, and Laws Governing Wrongs

First, let's explore relevant principles that might run through your mind.

For one, you may be thinking about whether they have any say in the arena of your personal life outside of work; there's a right to have a personal life reasonably demarcated from work life. There's privacy. There's the right to not be assaulted which would include the right not to be interrogated or medically examined against your will.

There’s non-seizure of property and non-seizure of oneself and one’s psychological being. There's a right not to be questioned about my medical and mental health, and not to be interrogated without legitimate cause. There's the right to self-choose one's medical care. The right to expect professionalism in the receipt of medical care, that is, that the medical provider would abide by standards of patient care and medical confidentiality; and the right to see and correct one's record of care. There’s the right to allow or prohibit disclosure of any aspect of that medical care and the right to a record of disclosures to see who that protected information has been shared with, and the right. There's a right to keep one's property, for example, one's professional degree and professional accreditations and good reputation. There's the right to take leave for illness.

There are contractual rights that apply to the terms of one's employment and performance at work. There are employee rights that are agreed to and spelled out in company documents. There's the right to have conflicts addressed and legally resolved in a fair manner with the assistance of counsel. There's the right not to be defamed, or publicly shamed, or wrongfully restricted from other employment.

As you will readily understand, these principles, these concepts, are simply that. In order to have the force of law, lofty concepts and guiding principles, which are, after all, founded on certain bedrock beliefs and core values, need to be codified into law in order to be binding and enforceable and triable. The idea of a law is to concretize a principle and spell out its applicable scope and the parameters of its actions. It defines the relevant actors (who it covers) and their prescribed actions, namely duties; their permitted actions, namely allowed behavior; and their proscribed or prohibited behaviors. And the law then assigns penalties for non-adherence. It also generally assigns an overseer (although this is often implied, it turns out); and also an enforcer and a pathway for enforcement, namely who receives complaints about potential violations, investigates and prosecutes.

All of the above principles are to us, that is, those fortunate enough to live in the semblance of a self-governing, law-respectful society, self-evident. And most of these principles have become codified in laws, both state and federal. There are also organizational-level laws known as bylaws or policies, and also profession-specific operating principles known as codes of professionalism and the like.

Numerous of these principles-turned-laws might be applicable to some aspects of the scenario elaborated above.

A Law About Workplace Medical Exams?

But … is there any law that has direct application to a workplace medical examination?

Hmm…. Hmm… You might be stumped at the “I dunno, they can't do this, it's just not right” stage. Don't feel like you are alone in feeling stupid. Turns out you apparently have a good company with the vast majority of professional license defense lawyers.²

Yes, There Is Such a Law

And It Governs Both the Employer’s Rights and Obligations, and Yours!

It turns out that yes! They – the employer – can do that, meaning order a medical exam, and they can take certain employment-related actions in response to it.

But … the one prevailing nationwide law that empowers that medical exam allowability also lays out very clear, very narrow, limiting parameters that employers must follow and must not veer from under penalty of law, lest they be subject to one, and likely several, specific civil rights violations. And that law is the ADA.

The ADA is not just about wrongfully screening out qualified people with disabling medical conditions from employment (Title 1); eligibility for government and municipal services (Title 2); and access to publicly available and accessible programs and facilities (Title 3). It is also about how these various entities handle those individuals with disabilities and whether their provision of services and administration of disability-related inquiry and testing, including medical exams, and their individualized case consideration, and their inquiry about and utilization of reasonable accommodations are handled.

And therefore all such medical examinations done under Title 1 of those with covered disabilities (and that is just about all acute and chronic medical conditions that have a sustained effect in one or more life domains, whether occurring in the past or the present) come under these limiting parameters.

“Fine, But I Dont Have a Disability”

Ah, but you say,

“I don't have a disability. I may have had some depression or perhaps gotten burned out. Or, yeah, maybe I'm dealing with the effects of trauma and grief of doing this very high-intensity medical care. But that's not a disability, is it?”

Or, consider this, you may have no medical or psychiatric illness symptoms whatsoever, but perhaps you may have manifested your less-than-best self in a patient care encounter or care team situation.

“That's not mental illness, and certainly it's not a disability! So, why does the ADA have anything to do with my being sent for a fitness-for-duty evaluation (FFDE)? They simply said I had to go for that evaluation or else I'd be fired, or put on leave, or have my credentials suspended? What's the ADA have to do with that?”

ALL Persons Are Covered Under the ADA - Actual Disability Not Required

You might find this shocking.

You don't have to have a disability to be covered under the ADA.

“But it’s the Americans with Disabilities Act. That can’t be right, can it?”

Let me repeat that.

You don't have to have an actual disability to be covered under the ADA.

You only have to be regarded as having a disability to be covered by the ADA across all of its applicable Titles.

In order to see how this applies to medical exams, especially in the context of physicians, their boards, hospitals, and PHPs, it's important for you to follow this reasoning very carefully, as it is the linchpin of regulation regarding work- and career-related medical examination.

When an ADA-subject Title 1 entity, i.e. an employer, sends you for medical examination, they are automatically asserting their belief that you have a disability that is playing some role in your allegedly suboptimal work performance, whether they feel it is deficient or perhaps are alleging that it is posing a danger to your or others’ safety.

Only Two Allowable Conditions Under Which An Employer Can Order A Medical Exam

In the Title 1 context, after you are employed, these are the only two allowable rationales under which an employer can order a medical exam. 1) diminished performance believed to be due to impairment from a disability; or 2) performance in a way that is felt to be a “direct threat,” i.e. causing imminent danger to self or others, that is believed to be due to a disability.

Key: “Believed to be due to a disability.”

The sine qua non here is “believed to be due to a disability.” By the very fact of ordering you to report for a medical exam, they are automatically inferring that they believe you have a disability. Thus, at a minimum, you are covered under the “regarded as” wing of the ADA. If they do not have a reasonable basis backed by objective evidence that you might have an illness condition that is disabling and causing impaired performance, then there is NO - ZERO - reason for your referral. Thus, you must be being “regarded as” disabled. If not, then a) the mandated exam may be ADA-impermissible; and b) it could be seen as an invasion of privacy (amongst other violations).

Legislature and Judiciary Hold HIGHEST Respect For Integrity and Privacy of the Medical Encounter

These very limited parameters for allowing employer-mandated medical examination under the ADA (and elsewhere in law) underscore the legislature’s and the judiciary’s utmost respect for the sacrosanct nature of the medical examination and treatment process. The privacy of that encounter, even the fact of its occurrence, is enshrined with protections. It is important to understand that abusing that process is not just a violation of the ADA. The general sense of our shared values espoused by all branches of our government and codified in various laws, both federal and state, is that the medical encounter is as close to sacred and inviolate as one can get.

After all, on this principle, medical boards were empowered to interfere with a physician’s right to practice if they were violating medical norms that jeopardized patient safety. This is also why medical privacy laws exist, because we believe that the medical encounter must be held in strictest confidence to ensure the inviolate protection of the medical encounter and the utmost private aspects of one’s life, the health of their mind and body.

Normalization of the Intrusive Psychiatric FFDE

Unfortunately, these violations of the medical examination and treatment process through such unwarranted medical fitness-for-duty exams has been progressively normalized. And the range of violations, including involuntary comprehensive forensic psychiatric consultation, false-positive drug testing, and polygraph-assisted diagnostic interview, has come to be accepted as not only permitted but as “standard of care.” However, let us be clear. It is nothing of the sort.

More on the dystopian implications of corporate and governmental incursion into medical care when we explore medical exams in the context of Title 2 provisions.   

Now, recall from Part 3 the 3 definitional categories of disability under ADA:

1. a past history of such a disability (“record of”);

2. a current disability, even if it is currently well-maintained in good treatment; and

3. simply being regarded as having a disability (“regarded as”).

This last category, simply being “regarded as,” automatically entitles you to all relevant protections under the ADA; i.e. you are considered to be disabled and entitled to all of ADA’s relevant protections including impermissible inquiry, unwarranted scrutiny, limited medical exam (bound by confidentiality), and consideration of accommodations.³

Therefore, as soon as an employer – perhaps even just a HCE that engages your medical services and whose staff appointment requires credentialing but doesn’t actually employ you, such as a hospital where you’re on staff – orders a medical or a psychiatric FFDE, they are doing so under the belief that you might have a disability. Whether they actually believe that or whether they are misusing this referral process for non-beneficent purposes (i.e. weaponizing the psych eval) does not matter right now. The same limiting parameters for medical exams exist.

You see, without such an evidence-based belief, without such an assertion of possible disability, there is no right for an employer to subject any employee to a medical exam.⁴

The ADA-permitted Medical Exam Has Clearly Articulated Parameters

And as we'll explore more fully below, under ADA Title 1, there are very clear parameters for all aspects of disability-related inquiry – from:

• the initial inquiry about disability conditions and their history;

• consideration of employee-requested job accommodations;

• the requisite basis for employer referral for a mandatory medical exam;

• who pays for it;

• who conducts it;

• what it consists of;

• what its scope is;

• what it is intended to accomplish;

• its disclosures, meaning who has access to its findings and recommendations;

• its exquisite confidentiality;

• and the security requirements regarding the fact of, and information contained in, that medical exam being treated as protected health information (PHI) securely stored separately from the employee work record.

To be unaware of your rights under the ADA is to be extremely vulnerable to employment and career rights deprivation. For a professional license defense attorney to be ignorant of this crucial domain of legal protection is unconscionable. It would be like a physician not recognizing the classic presentation of a heart attack and not taking appropriate emergency intervention.⁵

Medical Exams Parameters In The Employment Context (ADA Title 1)

An employer in the healthcare arena generally refers to a healthcare entity (HCE) such as a hospital that employs physicians. However, if a physician is credentialed at a facility but not directly employed (i.e. compensated in either a W-2 or 1099 manner), one medicolegal colleague indicated that the courts consider the fact of credentialing to be equivalent to employment and thus consider such physicians to also have rights protected under ADA Title 1 identical to those of employees. And thus nearly all physicians who are employed and/or credentialed at a HCE would be considered to be protected under Title 1.

Title 1 lays out specific pre-, intra-, and post-medical examination parameters regarding medical examinations (“ME”) of qualified physicians. Note here, these parameters were written into Title 1 alone. They are further elaborated in various documents produced by the EEOC, the enforcing authority for Title 1. An MLB and a PHP, in their regulatory activities of physicians, are not subject to Title 1. They are subject to Title 2, and as we’ll see subsequently, the absence of such criteria in Title 2 poses a conundrum.

Nevertheless, we’ll use the Title 1 parameters to best understand how ADA regulates medical examinations, additional testing, the charges for these, and the issues of individualized case analysis, confidentiality of the medical exam, and consideration of accommodation. And then we’ll see how these might be applied to the medical exam-silent Title 2 MLBs and PHPs.

Envisioning Phases of Employee Engagement Around the ADA-Protected Medical Exam

As the detailed exploration of medical exams (“MEs”) under Title 1 requires its own piece, let’s first understand the big picture of the phases of engagement around the medical exam. These are not specifically articulated as such in Title 1 or its EEOC Guidance documents; it’s my conceptualization derived from my compilation of research, presented so that we might begin to understand the potentially numerous component violations of the permissible medical examination parameters.

While the issue of employment-related MEs is presented in Title 1 and its guidance as though it were a single-dimensional occurrence (“the medical exam”), my study of the array of violations suggests that we best view the pursuit of the medical exam as a multi-dimensional process. My granular review reveals to me that each of the dimensions has separate ADA-requisite elements that, while seemingly minor in and of their single occurrence, if unrecognized, could overall result in a far-reaching and profoundly damaging ADA rights violation within what otherwise appears to be permitted ME activity.

In a scenario similar to the one conveyed above, there are really three phases:

1. Pre-ME referral

2. Referral for and conduct of ME

3. Post-ME review by employer, consideration of accommodation, and employee disability-related performance issue disposition and closure.

The pre-ME referral phase includes:

• Assertion of the presence of deficient performance;

• Employer belief that the deficient performance is a) impaired and/or unsafe b) due to disability;

• Employer has objective evidence to support the belief;

• Straightforward discussion of concerns with employee;

• Employer obtaining more information re apparent employee disability and consideration of potential accommodation;

• Employer review of employee’s existing medical care (if any) and existing documentation of the presence of a disability;

• Notification of intent to refer employee for ME, employer selection of ME, and rationale for ME

• Clarification of limited scope of exam and desired clarification;

• Opportunity for employee to raise questions, concerns, and to object;

• Clarification of employer’s financial responsibility for ME;

• Assurance of confidentiality of ME

Referral for and conduct of ME phase

• ME evaluator (“ME’er”) establishment of nature of, purpose and scope of ME

• ME’er obtaining fully informed consent

• ME’er obtaining specific permissions to disclose

• ME’er informing employee of disclosure parameters and relevance of HIPAA and/or other privacy standards;

• ME’er obtaining corroborative information re the alleged impaired performance and the alleged symptoms of disability (if needed);

• ME’er conduct of exam;

• ME’er discussion with employee of findings and recommendations;

• ME’er confirming understanding of disclosure and next steps in process.

Post-ME review by employer and case disposition phase

• Employer receipt and review of report of ME - by employer and employee;

• Employer designates report as confidentiality-protected and as requiring security provisions for handling;

• Employer review of ME’er findings of presence or absence of disability and of impairment;

• Employer review of nature of diagnosed disability, if identified;

• Employer review of recommendations of Me’er for current fitness for duty and for employee mitigation, employer accommodations, and further evaluations or follow-up;

• Employer disposition re status of consideration of reasonable accommodations, employee scope of employment.

As you can see, there are 25 component steps that can be discerned in the Title 1 ADA-compliant Medical Exam. It could be argued that a violation of even one component comprises a violation of the permitted medical examination parameters articulated under Title 1.

Protect Your Career and Be the Physician Hero Who Restores Humaneness to the Culture of Medicine

I recognize this is a lot to digest. But let me underscore why it’s in your best interest to grit your teeth and keep plowing ahead.

1. Armed with this information could mean the difference between thriving in your career and working as a Walmart greeter; and

2. By knowing and upholding your rights and preventing the MRTC from obliterating the profession of medicine, you are playing a vital role in restoring fairness to the culture of medicine.

We’ll explore each of these phases and their components more fully in the next piece.

1. This is generally not what is meant by the term “referral.”

2. What I’ve seen amongst this ilk in the MRTC arena is “Well, it looks like they can do that. That’s what their lawyer told me. So you have to do what they say.” [$Ka-ching$] This is not to disparage those ardently trying to find a way to defend physicians’ rights within a structurally unfair system. There are indeed some passionate physician-advocate lawyers out there. Sadly, however, there are some predatory operators.

3. Further, once you have been examined and a diagnostic conclusion has been reached, you now also have a record of disability (valid or not) thus ensuring you are protected against ADA medical testing abuses.

4. That is, apart from specific medical functional parameters applicable to all employees in that same role category.

5. Attorney Bill Goren goes so far as to say that counsel representing a physician in matters pertaining to an allegation of disability and impairment who do not raise the ADA as a defense in some manner and assert the rights contained within it ought to be considered as practicing in a negligent manner and should be subject to malpractice. See: Medical Licensing Boards, Physician Health Programs, and the Lack of ADA Compliance: an Opportunity for Plaintiff Lawyers by William Goren July 13, 2019. [https://www.understandingtheada.com/blog/2019/07/13/medical-licensing-boards-physician-health-programs-ada-compliance/]