A Matter of Life and Death- Why the ADA Permits Mandatory Periodic Medical Examinations of

• Author: Jarod S. Gonzalez
• Position: Assistant Professor of Law, Texas Tech University School of Law
• Pages: 681-732

Page 682

No reference to A Matter of Life and Death (Sony Pictures 1946), the wartime fantasy film designed to ease relations between Britain and America after World War II, is intended by the use of this title.

Assistant Professor of Law, Texas Tech University School of Law; B.B.A., summa cum laude, University of Oklahoma, 1997; J.D., with highest honors, University of Oklahoma College of Law, 2000. In the interest of full disclosure, as an associate in the Labor & Employment section at Thompson & Knight LLP, I helped represent an offshore drilling company that sought to conduct across-the-board periodic medical exam examinations of all offshore drilling employees located on rigs in the Gulf of Mexico. My work during the representation and the Equal Employment Opportunity Commission's response to our client's business interests served as the genesis for this article. I would like to thank William Lovelace for assisting in the research for this article and Marc Klein, Jim Eissinger, Susan Saab Fortney, Brian Shannon, and Sandra Sperino for their comments and suggestions concerning prior drafts of this article. Any mistakes or errors in this article are mine and mine alone.

I Introduction

Imagine the following situation: a driller is operating the drawworks¹ on an offshore oil rig deep in the waters of the Gulf of Mexico. He has a massive heart attack and loses control of the drawworks. The weight attached to the drawworks' cable plunges downward and lands on several roustabouts² who are connecting pipe. The roustabouts are instantly killed and several rig workers are seriously injured. The driller is incapacitated. The offshore drilling company exercises immediate emergency procedures and arranges for a Mexican helicopter to medivac the injured employee to the nearest Mexican hospital. But thunderstorms delay the rescue process. The injured workers do not arrive at the hospital until forty-eight hours after the accident. Many of the injured workers cannot be saved because of the delay.³

Marc Klein, my former colleague, and I outlined the doomsday scenario mentioned above in a request for technical assistance letter sent to the Equal Employment Opportunity Commission (EEOC) in March 2004 on behalf of our client-an offshore Page 683 drilling company.⁴ The company had experienced several close calls in which offshore employees had experienced life-threatening medical emergencies while on the rig.⁵ These emergencies placed the lives of the affected individuals in grave danger.⁶ While the aforementioned nightmare scenario was hypothetical, it was grounded in reality. This situation, or some variation thereof, could happen in the future. To reduce the risks of the occurrence of such a catastrophic incident and to protect the health and safety of its offshore employees, the company desired to adopt a policy requiring all offshore employees to undergo periodic medical examinations.⁷

The request for technical assistance letter contended that the company's proposed policy complied with the Americans with Disabilities Act of 1990 (ADA) in that the policy was both jobrelated and consistent with business necessity.⁸ The EEOC, citing its own EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, disagreed.⁹

This article explains why across-the-board mandatory periodic medical examinations for employees working at dangerous jobs in remote locations, such as offshore drilling workers, do not violate the ADA-the EEOC's unofficial position notwithstanding. Part II of this article discusses the ADA provisions regarding medical examinations during various stages of the employment process. It also addresses the EEOC's interpretation of the statutory language concerning medical examinations of existing employees. Page 684

Part III of the article advocates a better approach than the one taken by the EEOC. Instead of limiting the employer's ability to require medical examinations of employees to (i) instances in which an employer has specific evidence that an individual has a medical condition that prohibits him or her from safely performing the job or (ii) only those individuals who work in public safety positions, the "business necessity" defense in 42 U.S.C. ß 12112(d)(4)(A) should allow employers to require periodic medical examinations of all employees that work at dangerous jobs in remote locations. The approach I advocate is consistent with the language of the statute and addresses the legitimate safety concerns of employers who require employees to perform dangerous jobs in remote locations.

Part IV is a preemptive response to those in the labor and employment law community who may believe this proposed approach imprudently permits an employer to engage in "workplace paternalism." In my view, workplace paternalism in this particular situation is no vice and does not constitute disability discrimination. I will explain why I believe the underlying rationale for my approach is consistent with the Supreme Court's decision in Chevron U.S.A., Inc. v. Echazabal,¹⁰ reflects a sound policy choice that is permitted by the statute, and is economically efficient.

II The Eeoc's Interpretation

A Medical Examinations under the ADA

On July 26, 1990, President George Herbert Walker Bush, the forty-first President of the United States of America, signed the ADA into law.¹¹ Title I of the ADA prohibits an employer from discriminating against a job applicant or employee because of his or her disability.¹² The prohibition against disability Page 685 discrimination includes medical examinations and inquiries.¹³ But this prohibition is not absolute. The relevant statutory provision, 42 U.S.C. ß 12112(d), provides the employer with varying levels of discretion to require medical examinations, depending on the stage of the employment process.¹⁴ Section 12112(d) provides as follows:

(d) Medical Examinations and Inquiries

(1) In general.-The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries.

(2) Preemployment.-

(A) Prohibited examination or inquiry.-Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

(B) Acceptable inquiry.-A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.

(3) Employment Entrance Examinations.-A covered entity may require a medical examination after an offer of discharge of employees, employee compensation, job training and other terms, conditions, and privileges of employment. (emphasis added). "The term 'covered entity' means an employer, employment agency, labor organization, or joint-labor management committee." Id. ß 12111(2). In general, an "employer" is "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person . . . ." Id. ß 12111(5)(A). A "qualified individual with a disability" is Page 686 employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if:

(A) all entering employees are subject to an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that:

(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(iii)government officials investigating compliance with this chapter shall be provided relevant information on request; and

(C) the results of such examination are used only in accordance with this subchapter.

(4) Examination and Inquiry.

(A) Prohibited examinations and inquiries. A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

(B) Acceptable examinations and inquiries. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform...