Executive Agency Goings on and How Far Can You Go with a Request for Information

Y’all may be wondering where my blog entry from last week went. I was absolutely slammed with client matters and could not get to it. I’ve got a moment now. So, this blog entry is going up at the beginning of this week. Before moving onto the blog entry of the day, there have been some interesting developments in the area of regulatory bodies and disability rights recently. First, the pandemic has raised the issue of whether persons with disabilities are being valued less when it comes to deciding on medical care when choices have to be made. The Federal Constitutional Court of Germany said that isn’t going to happen, here. Also, the Department of Health and Human Services recently put out a question and answer document, here, saying essentially the same thing. Finally, in other regulatory developments, DOJ added to its Common Questions about Covid-19 and the ADA document, here, a section dealing with hospitals and medical facilities excluding all visitors and a section on outside eating spaces at restaurants. For those in the ADA world all the time like myself, I did not find the DOJ information particularly surprising.

 

Turning to the blog entry of the day, it deals with the question of when and if a request for documentation pursuant to legitimate disability related inquiries goes too far. I have not seen a lot of case law in this area before. For current employees, the ADA prohibits medical exams/disability related inquiries unless they are job-related and consistent with business necessity. That limitation also serves to limit any further medical exam or disability related inquiry to those narrow issues. Title II and title III in their technical assistance memorandum also prohibit unnecessary inquiries. Even with all this, it can be difficult to figure out when a document request has gone too far. Cofffey v. Norfolk Southern Railway Company from the Fourth Circuit decided January 14, 2022, here, helps answer the question as to how far a document request can go. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning federal regulatory background; court’s reasoning that Norfolk Southern acted in accordance with its due diligence obligations because its inquiries were job-related and consistent with business necessity; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

As a locomotive engineer, he, plaintiff, was responsible for operating the train, and he had to perform such tasks as responding to hazards on the railroad tracks to prevent collision or derailment. The position required him to walk across uneven tracks and climb steps to board and deboard the train multiple times per shift. Locomotive engineers are subject to Federal Railroad Administration (FRA) regulations regarding alcohol and drug use.

In 2012, a train that Coffey was operating derailed. Shortly thereafter, a drug test revealed the presence of amphetamines in Coffey’s system. Coffey was permitted to continue working, but he was subject to follow-up drug testing for five years. In April 2016, one of these drug tests showed the presence of amphetamines and codeine. Coffey explained that he had prescriptions for both medications: the amphetamines were Adderall, which he took for Attention Deficit/Hyperactivity Disorder (ADHD), and the codeine was Tylenol #3, which he took for a back condition.

In response, Norfolk Southern requested that Coffey provide certain records relating to his medication usage within thirty days. The letter stated that Coffey’s treating physicians should address, among other things, Coffey’s diagnoses, significant symptoms, medication regimen and compliance with that regimen, medication side effects, awareness of other medications prescribed by other doctors, ability to safely perform essential job functions, and recommended work restrictions or accommodations. According to Coffey, he asked his doctors to send the records and he believed they followed through. Norfolk Southern denies having received any records within the thirty-day time frame.

Six weeks later, in June 2016, Coffey ruptured his Achilles tendon and took medical leave from Norfolk Southern. Norfolk Southern requested that when Coffey was ready to return to work, he provide medical information about his injury so that it could determine his fitness for service as an engineer. Coffey remained on medical leave from Norfolk Southern for approximately ten months, and in April 2017 his primary care physician cleared him to return to work. At that point, Norfolk Southern sent Coffey a follow-up letter seeking all the records it had previously requested regarding both his medication use and his injury. Coffey says that he repeatedly asked his doctors to provide the requested information to Norfolk Southern. Norfolk Southern repeatedly denied having received the records, and it sent two more letters demanding compliance within certain time frames. Coffey says that this became a recurring pattern where Norfolk Southern would demand records, Coffey would ask his doctor to send them, and Norfolk Southern would inform him that it had not received anything.

In June and July of 2017, Norfolk Southern eventually received certain records from Coffey. Those submissions included a two-sentence note from Coffey’s treating physician clearing him to work without restrictions after the injury; the results from a functional capacity evaluation completed some months prior; a one-page note from one of Coffey’s doctors verifying that he had a Tylenol #3 prescription; and a one-page note from another of Coffey’s doctors verifying that he had an Adderall prescription. However, Norfolk Southern was unsatisfied with the records it received, stating that they failed to include specifically requested information such as medication side effects or the physicians’ knowledge of other prescriptions. It therefore notified Coffey that he would be subject to a disciplinary hearing to be held on September 7, 2017. For that hearing, Coffey submitted approximately four hundred pages of medical records. Upon determining that the records produced still did not address much of the required information, Norfolk Southern terminated Coffey’s employment.

II

Court’s Reasoning Federal Regulatory Background

1. Since the beginning of railroad transportation, courts have recognized that railroads present all kinds of danger to the community.
2. The operation of railroads require the use of instruments and agencies attended with special risk and dangers, the proper management of which involves peculiar knowledge, training, skill and care. If that isn’t done, there can be serious ramifications including loss of human life or property, toxic environmental damage, and infinite litigation. It isn’t surprising that the term “train wreck,” is a shorthand for mishaps of all sorts.
3. Railroad operators have a very strict responsibility for preventing damage.
4. The railroad industry is regulated pervasively to ensure safety by both the federal and state governments.
5. Locomotive engineers in particular are engaged in safety sensitive task because they discharge duties with such risk of injury to others that even a momentary lapse of attention can have disastrous consequences. Not surprisingly, the Supreme Court has upheld constitutional challenges to regulations requiring drug and alcohol testing of certain railroad employees, including engineers because of the great potential of human loss. The Supreme Court emphasized the great public interest in ensuring railway safety underlying those regulations.
6. Engineers must be aware of whether there are items or obstructions on the track, such as branches, animals, or even pedestrians. They also have to slow down at certain points in the journey where a stop was not planned or respond to unexpected weather conditions. They have to ensure that all personnel are on board when departing the station. They have to navigate switches and intersection where cars cross the rails. Even with technology, the human element can never be removed entirely, so the need for sound judgment remains.
7. Federal regulations say that no regulated employee may use or possess any controlled substance when the employee is on duty and subject to performing regulated service for railroad. Those regulations also say that an employee may not report for duty or remain on duty while under the influence of or impaired by any controlled substance.
8. The regulations do allow for medications prescribed or authorized by a medical practitioner only under three conditions: 1) if a physician has made a good faith judgment with notice of the employee’s assigned duties and on the basis of the available medical history, that use of the substance by the employee at the prescribed or authorized dosage level is consistent with the safe performance of the employee’s duties; 2) if the employee uses the medication at the doses prescribed or authorized; and 3) if the employee is being treated by multiple physicians, at least one has been informed of all medications authorized or prescribed and has determined that use of the medications is consistent with the safe performance of the employee’s duties. Finally, amphetamines and coding are specifically listed as substances to which the regulations apply.
9. The regulations also impose on railroads a duty to exercise due diligence to assure compliance by each regulated employee. So, Norfolk Southern was under an obligation to make further inquiries to ensure that plaintiff’s use of his medication complied with the applicable safety regulation. It also had to investigate whether plaintiff had valid prescriptions, whether he was using the medications as prescribed, whether the position thought he could safely perform his duties well on the medication, and whether at least one physician was aware of any other prescriptions and thought they could all be used safely together.

III

Court’s Reasoning Norfolk Southern Acted in Accordance with Due Diligence Obligations Because Its Inquiries Were Job-Related and Consistent with Business Necessity

1. Job related and consistent with business necessity is an objective inquiry.
2. Citing to Kroll, which we discussed here, the Fourth Circuit said that job related and consistent with business necessity standard is satisfied if the employer reasonably believes that an employee’s medical condition impaired his ability to perform the essential functions of the job or the employee poses a direct threat to himself or others.
3. Business necessity must be based upon more than just mere expediency. That is, the employer must show that the asserted business necessity is vital to the business and that the request is no broader or more intrusive than necessary.
4. Once plaintiff’s drug test revealed that he was using codeine and amphetamines, Norfolk Southern had an objective basis to believe that those substances could impact plaintiff’s ability to operate a train.
5. EEOC’s enforcement guidance even says that certain employers may be able to demonstrate job-related and consistent with business necessity when it comes to requiring employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions.
6. Each of Norfolk Southern’s specific inquiries into plaintiff’s medication usage were related to plaintiff’s job. The information they sought was unquestionably consistent with the necessity of ensuring the safe operation of its trains. That the inquiries require plaintiff to provide ample record does not change the conclusion.
7. Norfolk Southern, given its public safety responsibilities, was more than justified in my collecting enough information to permit an informed decision about whether it was safe for its employee to operate a train.
8. The inquiries of Norfolk Southern were not only related to plaintiff’s job but were in fact required by federal regulations. Complying with legally binding federal regulations is by definition a business necessity. So, a court cannot read the ADA to subject railroad to substantial liability when attempting to obtain information required by federal regulation that is highly germane to public safety.
9. The business necessity defense is not negated even though there may have been a better way for Norfolk Southern to get the information it needed other than the way it chose. That is, the employer does not have to show that the examination or inquiry is the only way of achieving a business necessity, instead the employer has to show that the examination or inquiry is a reasonably effective method of achieving it. So, Norfolk Southern’s request for plaintiff to submit his own medical records in response to specific queries was clearly a reasonably effective method of investigating medication use.
10. Plaintiff’s response to Norfolk Southern’s inquiries with one-page letters was not sufficient to satisfy Norfolk Southern’s regulatory requirements, and plaintiff even recognize that the letters he submitted did not address the issues that Norfolk Southern had to address because of federal regulations.d
11. In a footnote, the court said that improper medical inquiry claims under the ADA stand apart from general claims of discrimination and do not require the plaintiff to show that he has a disability. After all, it would make little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability.

IV

Thoughts/Takeaways

1. This case does give useful guidance on when a documentation request goes too far. That said, it is very important to remember that pervasive final federal regulations played a critical role in the court’s decision.
2. As a preventive law matter, any inquiries should be no broader nor more intrusive than necessary. The TAM’s for title I-III all have unnecessary inquiry prohibitions. See, EEOC title I Technical Assistance Memorandum, I-6.6; DOJ title II Technical Assistance Memorandum, II-3.5300; DOJ title III Technical Assistance Memorandum, III-4.1300 .If specific federal regulations are involved, an employer may have more leeway with respect to the amount of information requested. Even then, be sure to stick to the regulations closely with respect to the information requested.
3. Kroll has been one of my go to decisions for years as readers of the blog know.
4. Direct threat is a very high standard. See this blog entry for a discussion of direct threat.
5. Business necessity is also a high standard as it must be vital to the business.
6. It’s one thing to mandate reporting the medications, but don’t forget what you do with that information must also be consistent with the ADA. For example, you still have to ascertain whether the person is otherwise qualified, whether it be under title I or title II when you are dealing with an employer or with a nonfederal governmental entity.
7. When it comes to medical exams and disability related inquiries, it is clear that it is a separate cause of action, and you do not have to have a disability to assert such a claim.

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