Following a recent decision by the Seventh Circuit, employers who violate the Americans with Disabilities Act (ADA) by requiring medical examinations of an employee without a business necessity may now be liable for back pay even if the employee is not disabled.
The ADA prohibits employers from requiring individuals to undergo medical examinations as a condition of employment absent a business necessity. An employer in violation of this requirement may be liable for back pay, but only if the individual was discriminated against on the basis of a disability or a perceived disability. In theory, this means only people who are actually disabled or who are perceived as disabled can recover for a violation. However, in a recent decision, the Seventh Circuit expanded this remedy to apply to non-disabled employees, as well.
In Nawara v. Cook County, John Nawara, a former correctional officer at the Cook County Jail, had several altercations with fellow county staff. As a result, the Sheriff’s Office required him to complete a fitness-for-duty test before returning to work. After completing the medical exam, Nawara filed suit, alleging the examination requirement violated the ADA.
The trial court found that the Sheriff’s Office violated the ADA by requiring Nawara to submit to a medical exam as a condition of his employment. However, it declined to award monetary damages in the form of back pay, because Nawara did not have a disability or perceived disability.
Nawara appealed the back pay determination to the Seventh Circuit, where the appellate court reversed the trial court’s decision and held that Nawara could be entitled to back pay under the ADA, even though he was not disabled. The Seventh Circuit stated that the Sheriff’s Office’s requirement that Nawara undergo a medical examination prior to returning to work constituted disability discrimination in and of itself, regardless of whether Nawara had a disability or perceived disability. According to the court, the ADA’s prohibition against discrimination on the basis of a disability or perceived disability includes requiring employees to undergo improper medical examinations. The court explained, “Congress effectuated the broad remedial purpose of the ADA by including medical examinations and inquiries into an employee’s disability status within the definition of ‘discrimination … on the basis of disability.’” The Seventh Circuit, therefore, held that Nawara could be entitled to back pay from the Sheriff’s Office even though he did not have a disability or perceived disability, and remanded the case for consideration of appropriate damages.
In light of this decision, employers in the Seventh Circuit (Illinois, Indiana, and Wisconsin) should review their HR policies and procedures to ensure they only request medical examinations under permissible circumstances, as the potential risk for an impermissible exam may now be greater, given that more employees are entitled to back pay.
