The Americans with Disabilities Act provides that a person is entitled to an accommodation if needed. But, sometimes the need for accommodation is not so apparent. Back injuries are notorious for being unpredictable. Russell Holt applied for a job with BNSF railway. He received a job offer conditional on passing a physical exam. Mr. Holt had a history of back surgery. His medical doctor and medical information supported a positive result. But, the employer’s doctor, Dr. Jarrard, refused to certify the applicant unless he received an MRI. Mr. Holt could not afford an MRI. The Equal Employment Opportunity Commission filed suit, alleging that requiring the job applicant to pay represented discrimination against a person with a disability. That lawsuit became EEOC v. BNSF Railway Co., No. 16-35447, 2018 WL 4100185 (9th Cir. 8/29/2018).

The applicant’s insurance company would not pay for the MRI, because he was not in any pain, at present. The MRI would then cost over $2500.

The Ninth Circuit Court of Appeals asked the question, who must pay for a medical exam. The court viewed the claim as a “regarded as” disabled claim, noting that Mr. Holt suffered from permanent disc damage. BNSF tried to argue that it did not consider him impaired. It just wanted to be “sure.” The court was not persuaded. The employer pointed to a case that was in effect overruled by the ADA Amendments Act. But, more importantly, in requesting more information about Mr. Holt’s back condition, BNSF had made an assumption that the applicant had a back condition which prevented him from performing the duties. That presumption would persist unless the applicant could overcome it. The employer, said the court, cannot hide behind the level of uncertainty about the precise nature of his back condition. A “perceived impairment” is consistent with the ADAAA’s broad coverage.

The court then addressed the requirement that the applicant pay for the physical exam. The court had no trouble in finding that requiring a job applicant to pay the cost of a physical exam is a condition of employment which is based on a perceived impairment. An employer can only impose a condition of the job if it imposes the same requirement as all applicants. BNSF, however, only imposed this requirement to pay for an MRI on the job applicant who was perceived as impaired. That condition amounts to a violation of the ADA. And, noted the court, if the employer was not required to pay for such tests, then the test would act as a screening criteria for persons with a disability. That would also amount to a violation of the ADA. The court affirmed summary judgment in favor of the plaintiff.

See the decision here.

 You gotta love these stories, sometimes.  An employee goes back to her home country, the Phillipines with her husband for seven weeks.  They visit family, friends.  The husband is disabled.  They visit a miraculous Catholic church, known for its healing abilities.  The wife pushes her husband’s wheel chair, comforts him, provides psychological counseling, helps with the luggage.  Visiting family and friends consume perhaps 40% of their time.  She is gone seven weeks and claims FMLA leave when she returns to the US.  The employer denies her claim.  She sues.  Who wins?  The employer.  Because, she was seeking a miracle, not medical treatment, said the court.  According to Mike Maslanka.  Too, the court added, a priest is not a medical care provider under the FMLA. 

In an opinion out of the Massachusetts district court, the judge said even if this trip constituted medical treatment, the FMLA does not cover a vacation trip with a sick spouse, even if treatment is an incidental part of that trip.  Tayag v. Lahey Clinic Hospital.  It is not clear to what extent, if any, caring for a sick spouse on a medically necessary trip would be covered under the FMLA.  Courts have found that providing indirect psychological support for an ill family member does qualify as caring under the FMLA.  But, in reading the opinion, it appears that the court was too troubled by the vacation aspect and the absence of actual medical treatment.