The U.S. Court of Appeals for the Ninth Circuit has ruled that an employer’s insistence that an applicant with a history of serious back problems undergo an expensive MRI as a condition of employment, and pay out-of-pocket for it, amounted to a violation of the Americans with Disabilities Act (ADA).
The ruling by the appeals court in EEOC v. BNSF, No. 16-35457 (9th Cir. August 29, 2018), affirms a trial court ruling for the Equal Employment Opportunity Commission (EEOC), but not on the grounds the agency argued. The Ninth Circuit concluded that the issue here was not whether the employer had the right to require the applicant to provide additional medical documentation verifying his physical fitness for the position in question, as the agency contended.
Rather, according to the court, the issue in this case was simply whether the ADA permits an employer to require post-offer follow-up medical testing at the applicant’s own expense. More specifically, the Ninth Circuit found that forcing an applicant to pay for a follow-up medical test after the results of a post-offer exam indicate a potentially disqualifying impairment discriminates by placing “an additional financial burden on a person with a disability because of that person’s disability” that does not exist for non-disabled individuals.
NT Lakis lawyers had filed a “friend-of-the-court” brief arguing that not only are such post-offer requests lawful, but also that nothing in the ADA requires employers to pay for them. While the appeals court acknowledged that the ADA “is silent as to who must bear the costs of testing,” it ultimately concluded that forcing an applicant to pay for a follow-up test would erect an impermissible barrier to employment for many individuals with disabilities.
A copy of the Ninth Circuit’s decision in EEOC v. BNSF is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.