I. Introduction. I. The EEOC's Interpretation . Medical Examinations Under the ADA . Medical Examinations of Employees-The EEOC's View II. A Better Approach. Legitimate Business Purpose Standard. Periodic Medical Examinations of Remote- Location Employees. Creating the Remote-Location Exception Through Case Law. Taking Adverse Employment Action. V. Paternalism and Economic Efficiency. Reasoned Paternalism in the Name of Safety is not a Vice. The Efficiency of Periodic Medical Examinations. Conclusion.
A Matter of Life and Death- Why the ADA Permits Mandatory Periodic Medical Examinations of
No reference to A Matter of Life and Death (Sony Pictures 1946), the wartime fantasy film designed to ease relations between Britain and America after World War II, is intended by the use of this title.
Assistant Professor of Law, Texas Tech University School of Law; B.B.A., summa cum laude, University of Oklahoma, 1997; J.D., with highest honors, University of Oklahoma College of Law, 2000. In the interest of full disclosure, as an associate in the Labor & Employment section at Thompson & Knight LLP, I helped represent an offshore drilling company that sought to conduct across-the-board periodic medical exam examinations of all offshore drilling employees located on rigs in the Gulf of Mexico. My work during the representation and the Equal Employment Opportunity Commission's response to our client's business interests served as the genesis for this article. I would like to thank William Lovelace for assisting in the research for this article and Marc Klein, Jim Eissinger, Susan Saab Fortney, Brian Shannon, and Sandra Sperino for their comments and suggestions concerning prior drafts of this article. Any mistakes or errors in this article are mine and mine alone.
I. Introduction .
Imagine the following situation: a driller is operating the drawworks1 on an offshore oil rig deep in the waters of the Gulf of Mexico. He has a massive heart attack and loses control of the drawworks. The weight attached to the drawworks' cable plunges downward and lands on several roustabouts2 who are connecting pipe. The roustabouts are instantly killed and several rig workers are seriously injured. The driller is incapacitated. The offshore drilling company exercises immediate emergency procedures and arranges for a Mexican helicopter to medivac the injured employee to the nearest Mexican hospital. But thunderstorms delay the rescue process. The injured workers do not arrive at the hospital until forty-eight hours after the accident. Many of the injured workers cannot be saved because of the delay.3
Marc Klein, my former colleague, and I outlined the doomsday scenario mentioned above in a request for technical assistance letter sent to the Equal Employment Opportunity Commission (EEOC) in March 2004 on behalf of our client-an offshore drilling company.4 The company had experienced several close calls in which offshore employees had experienced life-threatening medical emergencies while on the rig.5 These emergencies placed the lives of the affected individuals in grave danger.6 While the aforementioned nightmare scenario was hypothetical, it was grounded in reality. This situation, or some variation thereof, could happen in the future. To reduce the risks of the occurrence of such a catastrophic incident and to protect the health and safety of its offshore employees, the company desired to adopt a policy requiring all offshore employees to undergo periodic medical examinations.7
The request for technical assistance letter contended that the company's proposed policy complied with the Americans with Disabilities Act of 1990 (ADA) in that the policy was both jobrelated and consistent with business necessity.8 The EEOC, citing its own EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, disagreed.9
This article explains why across-the-board mandatory periodic medical examinations for employees working at dangerous jobs in remote locations, such as offshore drilling workers, do not violate the ADA-the EEOC's unofficial position notwithstanding. Part II of this article discusses the ADA provisions regarding medical examinations during various stages of the employment process. It also addresses the EEOC's interpretation of the statutory language concerning medical examinations of existing employees.
Part III of the article advocates a better approach than the one taken by the EEOC. Instead of limiting the employer's ability to require medical examinations of employees to (i) instances in which an employer has specific evidence that an individual has a medical condition that prohibits him or her from safely performing the job or (ii) only those individuals who work in public safety positions, the "business necessity" defense in 42 U.S.C. § 12112(d)(4)(A) should allow employers to require periodic medical examinations of all employees that work at dangerous jobs in remote locations. The approach I advocate is consistent with the language of the statute and addresses the legitimate safety concerns of employers who require employees to perform dangerous jobs in remote locations.
Part IV is a preemptive response to those in the labor and employment law community who may believe this proposed approach imprudently permits an employer to engage in "workplace paternalism." In my view, workplace ...
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