In Lee v. City of Columbus, the Sixth Circuit reversed a grant of summary judgment to a class of employees at the Columbus police department. The police employees had challenged the city’s policy requiring employees returning from more than three days of sick leave, injury leave, or light duty to give their immediate supervisor a doctor’s note stating the “nature of the illness.” The district court found that this policy violated the Rehabilitation Act, 29 U.S.C. § 791 (which incorporates the standards from the Americans with Disabilities Act) because it was overly intrusive. Following the Second Circuit decision in Conroy v. New York State Dep’t of Correctional Services, 333 F.3d 88 (2d Cir. 2003), the district court held that the policy violated the statute because it could reveal a disability to supervisors that had no need for that knowledge, especially when the city had a human resources department that could handle the information.
Judge Griffin’s opinion held that a request for a general diagnosis of an illness was not a protected inquiry under the Rehabilitation Act. It rejected the Second circuit’s holding that any inquiry that could reveal a disability was protected by the statue:
the Conroy court has unnecessarily swept within the statute’s prohibition numerous legitimate and innocuous inquiries that are not aimed at identifying a disability. . . . Asking an employee returning to work to describe the “nature” of his illness, however, is not necessarily a question about whether the employee is disabled.
The opinion also notes that even if it was a disability-related inquiry, would not be prohibited by the ADA because the policy applies all employees. Interestingly, the Court focused on guidance from the EEOC, as well as a comparison with the EEOC’s own policies – which were very close to the city’s policy.
Employers in the Sixth Circuit now have far more leeway than those in the Second Circuit to require doctor’s notes for illness and injury so long as the policy applies equally to all employees. This decision also confirms that closely adhering to the EEOC’s guidance provides a measure of protection from discrimination lawsuits. In addition, the panel’s distinction between policies that may reveal disabilities and those aimed at revealing disabilities makes disability discrimination class actions far more susceptible to an employer’s motion for summary judgment.
