Congress passed the Americans with Disabilities Act of 1990 (ADA) to protect certain disabled employees from unfair discrimination in the workplace. Applying to nearly all employers with 15 or more employees, the ADA protects disabled employees and applicants who are capable of performing the essential functions of a job with reasonable accommodation. Employers may not discriminate against such employees or applicants in any employment decisions. Reasonable accommodations may include changes to the structure or form of a job that will not impose undue hardship against the employer.

Improper Medical Questions Violate the ADA

The ADA is enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC has set forth a number of guidelines and regulations to assist employers in complying with the ADA. Pursuant to EEOC guidelines, employers violate the ADA when they ask disability-related questions at the wrong time or in the wrong way. In particular, medical inquiries violate the ADA if they are not job related and consistent with business necessity. Recent court cases have interpreted this law with respect to employers' sick leave policies.

Sick Leave Policies and the ADA

Many employers require their employees to submit a medical diagnosis or other supporting documentation in conjunction with their requests for sick leave. These employers may also require their employees to provide advance notice of requests for sick leave. Recent federal case law has cast doubt on these practices.

The EEOC warns employers that they are not to make disability-related inquiries unless the inquiries are:

• Job related,
• Supported by business necessity, and
• Narrowly tailored

The EEOC defines disability-related inquiries as those questions likely to elicit information about a disability, including the following:

• Do you have a disability?
• Have you ever had a disability?
• What prescription medication are you taking?
• What are the results of any genetic tests that you have had?

Recent Federal Case Law

In several recent cases, employees have complained that sick leave policies requiring employees to submit a medical diagnosis violate the ADA because they are seeking disability-related information. The employers in these cases have argued that their policies were job-related and were supported by business necessity, namely the necessity of curbing sick leave abuse. Although courts have recognized the importance of curbing sick leave abuse, they have cautioned against employers requiring all employees to submit a medical diagnosis in support of a request for sick leave.

In a 2004 case, for example, a federal district court stated that a sick leave policy requiring all employees to provide medical support for their periods of sick leave was likely not narrowly tailored to effect the employer's stated business necessity of curbing sick leave abuse. Although the court recognized that the employer likely could establish a business necessity for its policy with respect to certain employees, it likely had no justification for the policy's application to all employees. There was no apparent evidence that the majority of employees would abuse the sick leave policy if such medical inquiries were abandoned. Thus, the court suggested that a proper policy might allow medical inquiries only with respect to those employees identified by the employer as prior sick leave abusers. The court did, however, stress the importance of a case-by-case analysis of the question.

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