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An employer’s requirement that a worker who claims to be disabled must submit to an independent medical exam is not enough to prove that the employer “regarded” the worker as disabled, a federal appeals court has ruled. Instead, a unanimous three-judge panel held in Tice v. Centre Area Transportation Authority that the Americans with Disabilities Act allows employers to require an IME so long as it is “job-related” and there is a “business necessity” for doing so. “A request for such an appropriately-tailored examination only establishes that the employer harbors doubts (not certainties) with respect to an employee’s ability to perform a particular job,” Chief U.S. Circuit Judge Edward R. Becker of the 3rd U.S. Circuit Court of Appeals wrote in an opinion joined by Judges Theodore A. McKee and Walter K. Stapleton. “Doubts alone do not demonstrate that the employee was held in any particular regard,” Becker said, and “inability to perform a particular job is not a disability.” In the suit, Randy L. Tice complained that he was illegally fired from his job as a bus driver as a result of the disabling back injuries he suffered in a September 1996 automobile accident. U.S. District Judge James F. McClure Jr. dismissed the suit after finding that Tice was neither disabled nor “regarded as” disabled. On appeal, Tice argued that CATA discriminated against him on the basis of disability by discharging him, on a pretextual basis, in October 1996; that CATA discriminated against him by requiring an improper medical examination as a condition of his return to work in June 1996; and that CATA failed to safeguard his medical records properly. The appeal forced the 3rd Circuit to interpret for the first time the ADA’s provisions regarding permissible and impermissible medical examinations and inquiries. Tice’s lawyer, Michael J. Zicolello of Schemery & Zicolello in Williamsport, Pa., argued that Tice is disabled within the meaning of the ADA because his back injury constitutes an impairment that “substantially limits” the “major life activity” of working. He also argued that Tice has a “record” of having such an impairment and that CATA regarded him as having such an impairment. But Judge Becker found that Tice never alleged any limitation in the “major life activity” of working caused by his back injuries beyond his inability to drive a bus. “In fact, he could not do so,” Becker wrote, noting that both before and after his termination from CATA, Tice found employment with an airline and began operating a ticket sales business out of his home. “He has not offered any evidence to suggest that his back injuries have caused him any difficulties beyond their interference with his bus driving,” Becker wrote. Instead, Becker said, Tice argued only that if he could not perform his bus driving duties without accommodation, a jury could reasonably conclude that he was significantly restricted in the ability to perform “either a class of jobs or a broad range of jobs. “In other words,” Becker wrote, “even Tice himself cannot identify any limitations caused by his injuries besides the limitation on bus driving, and would have the jury speculate as to whether there might possibly be jobs out there that he cannot perform.” For the same reason, Becker rejected Tice’s claim that he has a “record of disability. “A plaintiff attempting to prove the existence of a ‘record’ of disability still must demonstrate that the recorded impairment is a ‘disability’ within the meaning of the ADA. Tice has only presented evidence that his impairment limited his ability to drive a bus.” But perhaps the most interesting issue in the appeal was Tice’s claim that he was “regarded as” disabled — a fact he said was proven by CATA’s requirement that he submit to an IME even though it had the opportunity to consult directly with his doctor and no other employee was forced to do so. Becker found that the ADA “expressly allows examinations or inquiries as to whether an employee has a disability or as to the severity of a disability, if such examinations/inquiries are job-related and consistent with business necessity.” The ADA also explicitly permits “inquiries” — but not examinations — as to an employee’s ability to “perform job-related functions,” Becker noted. “However, the Act is unclear as to whether examinations (rather than inquiries) are permissible if intended to evaluate the employee’s ability to perform job-related functions, even if such examinations are not intended to discover whether an employee is ‘disabled’ within the meaning of the Act,” Becker wrote. But Becker found that EEOC regulations “clarify the statute” by explaining that employers “may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity.” Under those standards, Becker said, “a request for an IME that complies with the statutory restrictions will never, in the absence of other evidence, be sufficient to demonstrate that an employer ‘regarded’ the employee as substantially limited in a major life activity, simply because an examination that is ‘job-related’ and ‘consistent with business necessity’ must, at minimum, be limited to an evaluation of the employee’s condition only to the extent necessary under the circumstances to establish the employee’s fitness for the work at issue.” Becker found that “even an improper IME request, without more, might not be sufficient to demonstrate that an employee was ‘regarded as’ disabled.” An inquiry into how an employee was “regarded,” he said, “is necessarily quite fact-specific, and all of the surrounding circumstances may be relevant in reaching a conclusion.” Tice argued that the IME was improper because CATA already had sufficient information from other sources to gauge his fitness for work. Becker disagreed, saying, “Such facts, standing alone, would not necessarily be determinative of how the employee was regarded.” But Becker stressed that the court was not foreclosing an argument that an IME request, in conjunction with other evidence, could support a “regarded as” claim. “The important point is that the request and surrounding circumstances must establish that the employee was ‘regarded as’ disabled within the meaning of the ADA,” Becker wrote. “So, for example, if it turned out that the employer’s examination was not limited to an assessment of those potential impairments that had occasioned the examination in the first place, but instead became a wide-ranging assessment of mental or physical debilitation, such evidence might be highly probative as to the nature of the employer’s perception,” Becker wrote. And a plaintiff who had evidence suggesting that the employer had “no reasonable basis for harboring doubts about the employee’s ability to do his or her job in the first place” might also have a valid claim, Becker said.

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