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Administrative Law Task Force

The Administrative Task Force plays a critical role in keeping our OSHA practice current and vibrant.  We follow developments daily and we work together to analyze the impact that proposed and actual changes will have on the law in general and specifically on our client’s industries. Employers today face an unprecedented range of workplace safety and OSHA legal issues as government increases worker safety and health regulation and demands meticulous reviews by its OSHA inspection force.

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District Court Rules Actual Disability Not Relevant To "Regarded As" Claim

A new case under the amended American with Disabilities Act (“ADA”) may add to employers’ confusion over how to handle medical and disability issues.   Butler v. Louisiana Dep’t of Pub. Safety & Corr., No. 3:12-cv-000420 (M.D. La. 2013).  In Butler, a state trooper alleged he was “regarded as” disabled by his employer, who allegedly thought he had obsessive compulsive disorder and germaphobia.  He claimed he was placed on involuntary leave, subjected to an excessive fitness-for-duty exam, and denied overtime opportunities.  The defendant employer denied the allegations and asserted the “direct threat” defense.  It sought discovery of the plaintiff’s psychiatric records and moved to compel production when the employee objected to the requests.  The court denied the motion to compel and made several interesting pronouncements.

“Regarded As” Claim Can Be Raised Even If Actually Disabled

 Under the ADA, a plaintiff may be disabled in three ways, via:  (1) an actual disability, (2) a record of a disability, or (3) being regarded as disabled.  42 U.S.C. §12102(1)(A)-(C).   The defendant argued a plaintiff cannot be both regarded as disabled and actually disabled.  The court disagreed, citing a provision of the law amended by the 2008 Americans with Disabilities Act Amendments Act (“ADAAA”).   Section 12102(3)(A) says a person is regarded as disabled if subjected to a prohibited action because of either an “actual or perceived” impairment “whether or not the impairment limits or is perceived to limit a major life activity.”  The regulations also state that whether a person is actually disabled is “not relevant” to coverage under the regarded-as prong.  29 C.F.R. §1630.2(j)(2).

Privilege Not Waived

 Another question was whether the common law psychotherapist-patient privilege protected the plaintiff’s confidential communications with his therapist.   This privilege prevents discovery of psychiatric records unless the patient places his mental condition at issue.  The court found the plaintiff had not placed his mental condition at issue by making a “regarded as” claim.  The only relevant medical evidence was that which the employer considered at the time of the alleged adverse actions.  Any other medical records do not affect the question of whether he had been “regarded as” disabled.

Additional Medical Evidence Not Relevant To Employer’s Defenses

The defendant raised several defenses based on concern for the safety of the plaintiff and his colleagues given his “bizarre” behavior.  The employer argued its safety concerns were both (1) a legitimate, nondiscriminatory reason for its actions and (2) a basis for the “direct threat” defense.  The court rejected the former theory because the relevant question is what actual behavior the employer observed at the time.  Whether the plaintiff had a diagnosis, or a medical condition, does not affect what the employer observed.  Nor can after-the-fact information reflect the employer’s motivation at the time of the decision.  For similar reasons, the plaintiff’s medical records could not be used to legitimize the company’s safety concerns by proving a psychiatric condition.  The central question in a “direct threat” defense is whether the individual can safely perform the essential functions of the job.  The employer must engage in an individualized, interactive assessment using reasonable, current, objective medical evidence.  Again, medical records unknown to the defendant cannot now illuminate what motivated its actions. 
 
What This Means For Employers

Initially this opinion may seem to question the often routine practice of seeking medical records in discovery.  However, several aspects of the case limit its holding from broader application.  For one thing, the plaintiff was not seeking damages for emotional or mental distress.   Had he done so, the court likely would have found that he placed his mental status at issue.  Second, the plaintiff was making only a “regarded as” claim, and not a failure-to-accommodate one.  Failure-to-accommodate claims are common in ADA litigation and, again, would likely tip the balance in favor of discovery. 

 Employers should continue to focus on job performance in its assessments of employee behavior.  Can the employee safely perform the essential functions of the position, with or without reasonable accommodation?  Before taking any action based on a perceived or actual medical condition, companies should ensure they have (i) discussed the scenario and alternatives with the employee and (ii) collected credible medical evidence of the employee’s ability, or inability, to do the specific job. 

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