According to the Americans with Disabilities Act, employers may only require employees to submit to medical exams or inquiries when there is a business necessity for determining the employee’s ability to perform the essential functions of the job. In the past, objective evidence of problems with job performance, or the employee’s own claims about the impact of the medical condition on job performance have satisfied this burden. However, in a recent Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) decision, the court allowed a claim of insufficient basis for an exam to proceed to jury trial despite evidence of employee accidents and deteriorating job performance.

In EEOC v. McLeod Health, Inc., the plaintiff wrote and edited an internal newsletter for the employer. She has a disability that results in periodic mobility problems. Prior to requesting the medical examination, the employer noted that the employee was struggling to come to work on time and to meet deadlines. In addition, she suffered at least three recent falls, one at work. As a result, the employer requested a medical exam to determine if the employee could safely and effectively perform her job duties, which included traveling between the employer’s various locations. The employee submitted to the exam, but was unable to agree on limitations and accommodations deemed necessary by the doctor to allow her to safely perform her job duties. After termination, the employee filed a claim with the EEOC challenging the employer’s entitlement to require the medical examination in the first place.

The district court dismissed the claim on summary judgment. However, the Fourth Circuit panel reversed this decision, remanding the case for jury trial. The court based its decision on two reasons. First, it could not conclude that the falls and performance issues objectively rose to the level of business necessity required for the employer to demand the medical exam. The court said that plaintiffs only have to demonstrate a slight doubt as to the severity of the problems to survive summary judgment. Second, the Fourth Circuit said that the jury needs to determine whether mobility is an essential function of this position, noting that the plaintiff was often able to conduct interviews and gather information by telephone.

Although the court did not make a substantive decision that the plaintiff’s rights were violated, this case raises disturbing implications for employers in the Fourth Circuit. If employees are only required to provide a scintilla of evidence to avoid summary judgment with regard to medical exam requirements, employers may become extremely reluctant to demand such information absent absolutely clear factual circumstances. Without the benefit of objective medical information from a third party provider, employers concerned about an employee’s ability to safely and effectively perform job functions are left in a difficult position. If they take adverse employment action against the employee, they are subject to claims that the action was not based on objective medical evidence. If they attempt to start the interactive process to determine the availability of accommodations, they would not have a clear understanding of the employee’s actual capabilities.

This decision is likely to make employers even more hesitant to try to figure out how to help a struggling employee. Rather than trying to understand the employee’s actual needs and abilities, this case incentivizes employers to do nothing until a situation deteriorates to the point where they can justify a requirement for medical information.