Fitness-for-Duty Vendor Entangles Cummins Power in Title 1 and GINA Trap
Here is another cautionary tale for employers who hire outside medical professionals to administer ADA Title 1 employment tests. Although occupational therapists, physical therapists, and physicians who provide post-offer employment testing and functional capacity evaluation for stay-at-work or return-to-work may not be first in line when it comes to an EEOC enforcement action, the employers they serve have long memories about liability visited on them by outside vendors.
Cummins Power Generation, Inc. of Minneapolis, Minnesota acted in good faith when it relied upon a provider of fitness-for-duty examinations to design both data collection forms and a test protocol in compliance with ADA Title I (Employment) and GINA (Genetic Information Nondiscrimination Act). As such Cummins sought to include the vendor as “indispensable to its defense” in a suit brought by the EEOC in federal court. However, the court held that “Cummins, as the employer, is liable for a violation of the ADA or GINA related to [the release] ‘regardless of whether third parties [were] also involved in the discrimination.'” (EEOC v. Cummins Power Generation, Inc., 313 F.R.D. 93 (D. Minn. 2015)).
The vendor-designed forms required an employee to sign what the EEOC called“ an overbroad release” of medical records in order to take the fitness-for-duty examination. Further, in clear violation of the law, the vendor-designed protocol required that the employee complete a family medical history questionnaire prior to his examination. In the end Cummins had fired the individual when he refused compliance. Looking closely at the EEOC’s lawsuit, the release of medical records was in violation because it was not narrowly tailored to the job requirements. Further, although the employee raised his concerns about the scope of the medical release to Cummins Power Generation, its managers refused to narrow the release. Cummins Power Generation argued that the format of the release and family medical history forms were designed by its third-party vendor.
However, the court ruled that Cummins, as the employer, was in no way shielded from the ADA and GINA violations resultant from the actions of their third-party vendor. The Employer remains the legally responsible party. The lesson from this tale: sanctions for physician examination of incumbent employees and conditional-hires for the purpose of hiring or return-to-work are virtually an everyday occurrence. Some are announced in the EEOC Newsroom. Most charges are handled privately.
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