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Labor & Employment News Alert

Pre-Employment Examinations Can Be Key Evidence in Disability Discrimination Actions

March 12, 2019

By: Wendy G. Adkins

The West Virginia Supreme Court of Appeals has “declined to impose a duty on employers to second-guess a reasonable, independent medical opinion that an employee, or prospective employee, is not physically qualified for a position.” Rather, in Woods v. Jefferds Corporation, the Court reaffirmed that an “employer is entitled to rely and act upon the written advice from a physician that an employee cannot safely do a task.” Specifically, in Woods, the medical opinion obtained through a pre-employment physical supported summary judgment in favor of the employer in a disability discrimination action.

In Woods, a prospective employee, during his interview, notified the employer that he had a prosthetic leg and expressed two limitations on his work abilities (difficultly picking up and then walking while carrying a heavy object and wearing heavy, steel-toed boots on his prosthesis). The parties then discussed those two specific limitations and agreed that the employee could use a dolly to move heavy objects and wear a tennis shoe on his prosthetic leg. Thereafter, the employee applied and was offered a job conditioned upon successful completion of a pre-employment physical examination. 

The employer engaged an independent physician to perform the examination and provided a four-page document outlining the physical skills required of the relevant job. The physician returned the employer’s examination form, indicating the employee was unable to do jobs that required squatting or climbing ladders. As a result, the employer advised the employee of the physician’s findings and explained that he could not have the job because squatting and climbing ladders were essential functions of the job.  The employee disagreed with the physician’s findings and insisted that he could climb ladders and partially squat. 

To establish a prima facie case of disability discrimination under the West Virginia Human Rights Act, a plaintiff bears the burden to establish that he is a “qualified person with a disability” who “is able and competent, with a reasonable accommodation, to perform, essential functions of the job.” In addition, to establish a breach of the duty to accommodate, a plaintiff is required to show, among other things, that a “reasonable accommodation existed that met the plaintiff’s needs.”

In Woods, the evidentiary record established: (1) crouching and climbing ladders were essential functions of the job; (2) the employer’s decision to not hire the employee was based solely upon the medical opinion obtained through the pre-employment physical that the employee could not perform these essential tasks; and (3) the employee did not request or identify any accommodations to respond to the pre-employment physical, but, instead, only insisted that the physician was wrong.  As a result, in Woods, the court found no evidence in the record that either party was aware of a reasonable accommodation that could meet the employee’s needs with respect to squatting or climbing ladders.  Therefore, the employee failed to establish a prima facie case of disability discrimination, and the court affirmed summary judgment in favor of the employer. 

If you have a physical workforce and do not currently require pre-employment physicals, please consider whether you should. If you currently require pre-employment physicals, please review your policy and procedure to ensure they are being properly conducted. And, an up-to-date job description is a necessity for a reliable pre-employment physicals, so review your job descriptions on a regular basis to ensure they identify the essential functions of each job. 

 

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