If you think getting a federal agency like OSHA to approve your medical questionnaire form will protect you from violating the Americans with Disabilities Act, think again. Whirlpool Corporation learned this lesson the hard way – but their hard lesson can be useful to you.
In a recent case in Ohio (Miller v. Whirlpool Corp.), Whirlpool had created a medical questionnaire in response to an accident that resulted in an OSHA safety violation. It narrowly believed that satisfying OSHA’s requirements and protecting the safety and health of its employees were its only concerns. However, the questionnaire included invasive medical questions such asking employees to identify specific mental or physical illnesses or accidents, the date of onset, and all medications the employees were taking. The Ohio court had little trouble concluding that the questionnaire was an improper disability-related inquiry because it intends to reveal or necessitates revealing a disability.
Whirlpool’s defense was that its medical questionnaire did not violate the ADA because OSHA approved it. This defense was rejected by the court. While the ADA recognizes that when a federal agency requires an employer to take an action that may be a defense to an ADA claim, in this case OSHA merely approved Whirlpool’s use of the questionnaire. OSHA did not have the authority to certify Whirlpool’s questionnaire as compliant with the ADA.
Whirlpool’s hard lesson reminds us to consider all laws and regulations when implementing new processes, not just those that appear directly related to the issue being addressed.
The merits of the case have yet to be decided, so it is possible that Whirlpool may establish that the medical questionnaire falls under an exception to the ADA because it is job-related and consistent with business necessity. Regardless, Whirlpool – and all of us – should now know that a government agency’s “approval” for its unique purposes of an employer form or action does not mean that the form or action is proper under the ADA.