United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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When an employer inquires into an employee's mental condition, the employer must preserve the confidentially of the information that it obtains in response to its inquiry. OFCCP v. American Commercial Barge Line, 84-OFC-13, ALJ Rec. Dec. and Order, September 30, 1986, slip op. at 24, rev'd on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order, April 15, 1992.

Complainant's refusal to release medical records is relevant to the issue of liability, but not to the issue of relief. Id. at 38.

Defendant's evidence as to applicant's fitness is not sufficient to rebut the plaintiff's showing that the applicants are qualified handicapped individuals because the contractor's doctor made no medically based assessment of capability in light of job requirements and based his determination on pre-established causes of disqualification. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 5-6; Consent Decree, December 10, 1991.

Defendant, a public transportation company employing people in a number of different capacities, repeatedly rejected an otherwise qualified applicant on the basis of a routinely administered blood pressure test, which showed his pressure to be above 140/90 without regard to end organ damage or symptoms. Defendant was ordered not to reject applicants purely in the basis of blood pressure readings. OFCCP v. WMATA, 84-OFC-8, ALJ Rec. Dec. on Remand, June 10, 1988, slip op. at 3, 8, aff'd, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

It is not valid defense for a contractor to claim that it acted in "good faith" or had a "rational belief" that the complainants were unqualified to drive because of the advice Yellow Freight received from its own examining physician. The medical advice Yellow Freight imposed; therefore, Yellow Freight cannot take refuge behind such advice. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 67, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

The defendant cannot shield itself from liability by the kind of wholesale, uncritical reliance on medical opinions it has demonstrated in this case. Contractor officials deferred to plant physicians and a second medical opinion but made no further inquires. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, slip op. at 28; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The required accommodation is an accommodation to the individual's particular handicap, not to matters unrelated to the complainant's physical or mental ability to perform the job. Thus, where contractor regarded complainant as epileptic and rejected him for failing to obtain a doctor's note releasing him to work on dangerous equipment, the contractor had no duty to accommodate complainant by allowing him additional time to obtain the release or by allowing him to return to work without such a release. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 9, n.6, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

Contractor violated Section 503 by rejecting complainant's note from his doctor releasing him to return to work at "full strength," and by refusing to permit him to return to work without a note from his doctor releasing him to work on dangerous equipment. Id. at 9, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 18.

Evidence showed that contractor's refusal to allow complainant to return to work after he presented a note from his doctor releasing him to return to work at "full strength" was made without inquiry as to complainant's actual medical condition and without investigation into what medical findings had been made during complainant's medical leave; decision was made solely on the basis of an uninformed comparison between complainant and a former employee who was required to obtain a particular type of release before returning to work. Thus, the manner in which contractor decided to refuse to allow complainant to return to work falls short of the case-by-case analysis required under the Rehabilitation Act. Id. at 12-13, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 23-26.

Because contractor violated Section 503 on the date it rejected complainant's note from his doctor releasing him for work at "full strength," it is irrelevant whether the contractor later terminated complainant officially for his failure to comply in a timely manner with contractor's unlawful request to obtain another release stating that complainant could work on dangerous equipment. Id. at 15, vacated sub. nom., Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip op. at 36.

Contractor's request that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions does not evidence that the contractor regarded him as handicapped but, instead, was consistent with company policy of making sure that return to work excuses for all employees are "adequate and complete" and to ensure that the complainant's physician had sufficient information to make a recommendation about his ability to return to work. Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 16.

Contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions; because employee believed that he had suffered epileptic seizures, contractor's request was a lawful and prudent inquiry directly related to complainant's own claims and his ability to safely return to work without posing a danger to himself or others. Id. at 18.

Regardless of his actual medical condition, complainant's claim that he was epileptic created a legal duty under the Occupational Safety and Health Act, 29 U.S.C. §651, 652, and 654, for contractor to maintain a place of employment free from recognized hazards by ensuring that complainant was medically capable of returning to the work force without posing a danger to himself or others. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions. Id. at 19.

Under the legal theory of "negligent retention," an employer can be held liable for an act of harm caused by an employee to fellow workers where the company was previously on notice of the employee's propensity to cause the harm in question. Under this legal theory, once contractor was put on notice of complainant's claimed epileptic seizures, contractor had a duty to ensure that complainant could safely return to work to the admitted hazardous conditions in the plant without posing a safety danger to his fellow workers. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions. Ibid.

A contractor may impose "qualification requirements" on employees even if they tend to "screen out" qualified handicapped individuals, provided that the requirements are job related, consistent with business necessity and the safe performance of the job. Thus, contractor did not violate Section 503 by requesting that employee who claimed to be epileptic produce a release from his doctor stating that he could work on dangerous equipment and under dangerous conditions; contractor had a legal right to demand that complainant meet requirements such as obtaining the release to ensure that he could safely return to the admitted hazardous conditions in the plant. Id. at 19-20.

Under Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), the only critical issue is that an inquiry concerning the employee's ability to perform the job be made before any final decision is rendered to absolutely deny employment or reinstatement to a qualified handicapped individual. Thus, contractor's request that complainant who claimed he was epileptic produce a note from his doctor releasing him to work on dangerous equipment and in dangerous conditions was not unlawful because the request was made in order for contractor to make its decision concerning complainant's reinstatement; i.e., whether complainant could safely perform the work in the admittedly dangerous environment of the contractor's plant. Id. at 23-26.

Even assuming that contractor violated Section 503 by requesting that complainant who claimed he was epileptic produce a note from his doctor releasing him to work on dangerous equipment and in dangerous conditions, complainant is not entitled to reinstatement because contractor later lawfully discharged complainant for violating company rule prohibiting unauthorized absences in excess of three days. Id. at 36.

The ALJ erred in concluding that manic depressive employee was discharged because he created a risk of liability under the contractor's view of maritime law; employee was discharged because he failed to provide medical records necessary for contractor to determine whether he created risk of liability. OFCCP v. American Commercial Barge Line Co., 84-OFC-13, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Order, April 15, 1992, slip op. at 11-12.

Contractor was "within its rights" in seeking more detailed medical records from a manic depressive employee to enable contractor to make an employment decision consistent with business necessity and the safe performance of the job. Id. at 12-13.

A contractor's request for medical records from an employee is authorized under 41 CFR 60.741.6(c)(3). Id. at 13.

Handicapped employee's failure to release his psychiatric records to his employer was not justified on the grounds that contractor did not assure him confidentially where employee expressed no requests or concerns to contractor regarding the confidentiality of his records. Id. at 14.

The regulation at 60-741.6(c)(3) does not require the contractor to provide an employee a specific assurance of confidentiality before it may obtain his medical records; the regulation simply requires that contractor observe the confidentiality of these records. Ibid.

Contractor met its burden of demonstrating that manic depressive employee's termination was for a non-discriminatory reason, i.e., his failure to release to his employer his psychiatric records held by the VA hospital. Id. at 14.

OFCCP failed to show that manic depressive employee actually and seriously re-applied for an available position after he was terminated. Thus, the fact that the contractor did not re- employ him even after he released his medical records did not establish that the stated reason for discharge (failure to release medical records) was a pretext for discrimination. Id. at 15-16.

Contractor's motion to compel OFCCP to provide information

regarding class members' medical histories and medical releases is granted; OFCCP has control of the alleged discriminatees in that they stand to benefit from this action brought by OFCCP, in part, in their behalf. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Granting In Part And Denying In Part Defendant's Motion To Compel, February 19, 1993, slip op. at 6; Consent Decree, June 2, 1993.

A contractor's determination of whether employment of an individual would pose a reasonable probability of substantial harm cannot be based merely on medical reports "except in cases of a most apparent nature." This phrase refers to situations that are very clear, evident and obvious, and not subject to serious dispute. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993, slip op. at 12-13; Order Approving Settlement and Dismissal, April 20, 1994.

Complainant's back x-ray results were not a "case of a most apparent nature" upon which contractor could rely exclusively in determining whether complainant posed a reasonable probability of substantial harm. Id. at 12.

Assistant Secretary discounts contractor's physician's assertions that employment of complainant with a back impairment would pose a reasonable probability of substantial harm. The physician merely reviewed complainant's back x-rays and provided no concrete data or other information to fully justify his position. Id. at 12-13.

Contractor's reliance on complainant's back x-rays in determining whether he posed a reasonable probability of substantial harm constitutes a violation of Section 503 as applied to complainant in particular and as it was used as a part of the contractor's general employment process. Id. at 14.

Contractor's decision to terminate complainant, which was based solely on a review of his back x-rays, violated Section 503 because contractor failed to gather all relevant information and assess both the probability and severity of potential injury in a meaningful and comprehensive manner. Id. at 14.

There is no basis in the Act to permit a contractor to require an employee or applicant for employment to undergo a treatment, operation or drug regimen before being considered for employment or being entitled to other terms, conditions or privileges of employment. That decision is a private one to be made by each individual with a handicap in consultation with his or her physician and other health professionals. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 14; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The job qualifications, [including radiographic evidence of a back abnormality], as applied essentially screened out an applicant because of an increased risk of injury. As such, they must be examined with care. Id. at 18; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The contractor has the obligation to "gather all relevant information regarding the applicant's work history and medical history and independently assess both the probability and severity of potential injury." Id. at 20; remanded sub. nom., on other grounds Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Cissell focused on the precise meaning of notes provided by doctors who examined the complainant, but failed to satisfy its obligation to gather all relevant information about his condition because it made no serious attempt to discuss the complainant's condition with them and evaluate with their advice the extent of his limitations. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 9; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The ALJ granted plaintiff's motion to allow its expert to review UAL medical records for the sole purpose of assisting plaintiff's counsel in trial preparation, and reiterated that said expert's testimony will be limited to that set forth in plaintiff's response to the defendant's interrogatory or that he "performed the radial keratotomy on [the complainant] and will testify about same." OFCCP v. United Airlines, Inc., 94-OFC-1, ALJ Order, September 7, 1995, at 2.

The ALJ denied plaintiff's motion for an order requiring defendant to produce at trial witnesses under its control, because he believed that the interpretation by plaintiff's counsel of 41 CFR § 60-30.17(b) is unreasonable under the circumstances of this case. The ALJ further expressed his belief that Fed. R. Civ. P. 45 takes precedence over 41 CFR § 60-30.17(b). Id. at 2.