Happy 2017. The new year is always a time for resolutions and fresh starts.
In the (fictional) mailbag today we received a letter from Chester, the HR manager of a local restaurant chain. Apparently, the owner of the chain wants to change the public’s perception of the food served at the restaurants. In service of that goal she is rolling out a mandatory cholesterol testing program. Chester is uncomfortable with it, but does not seem to know why. The Bullard Edge is going to help him out. While we do not provide legal advice, we are going to talk about the ADA in the hope that Chester will be able to organize his thoughts. Here is Chester’s letter and our response.
Chester’s Question:
As I am sure you know, Oregon food features a mixed bag of healthy and less healthy options. On the good side we have the world’s best cherries, berries and hazelnuts, among other things. On the (admittedly delicious but) less healthy side we have vanilla custard crème brulee’ French toast, the Reggie Deluxe (combining biscuits, fried chicken, cheese, gravy, and a yolky egg), and the bacon maple bar doughnut, to name a few.
The food thing can often be a fine line. For examples, cherries are a healthy snack, but cherry pie likely is not. If you are running a food industry business you have to be careful with this line. You want to project a positive image: just as “super healthy” can translate into not tasty, so can “decadent” translate into unhealthy.
I am in HR at Fat Phil’s BBQ, which is one of the most iconic local restaurant chains. Unfortunately, our history does not match our current menu. Our head chef is a graduate of Mid-Town Culinary, a school known for its emphasis on a healthy, but delicious menu. However, when folks think about us, most of them still think about our founder, Fat Phil, and his son, Bubba. Both of them were the face of this company and both of them died at age 34 from complications related to weight.
Phil’s granddaughter, Karen, runs the place now and she wants to reverse that image. Last Friday she issued a directive to HR stating that effective at the start of next month Fat Phil’s BBQ would require all employees to provide medical documentation regarding their cholesterol levels. Employees must have cholesterol scores that are within American Heart Association standards or meet those standards within six months. Employees will be required to update their compliance every three years.
Karen spelled out exactly what she wants to have happen. She wants to be able to begin a quiet marketing campaign that changes the image of Fat Phil’s BBQ. Maybe we were once the home of artery clogging trans fats, but no more. It is a new era. Our menu is filled with healthy and delicious options and our employees, who presumably eat here, do not have cholesterol problems.
I think I need to talk to Karen. Even though the reasoning behind the cholesterol testing makes sense to me, I expect that some of our employees will object and I am worried that they will have the law on their side. Am I right about this? Please give me some talking points for my meeting with Karen.
The Bullard Edge’s Response:
We think this situation is less complicated than it sounds. Here are six points to consider.
First, a cholesterol test is a medical exam and the result of a cholesterol test is medical information. The purpose of testing is to allow a doctor to better evaluate a person’s risk for heart disease, heart attack, stroke and other medical conditions. Testing may also help assess the effectiveness of treatment for one or more of these conditions.
Second, under the ADA and parallel Oregon law the rules regarding allowable medical inquiries and examinations vary depending on whether a person is an applicant, a job offeree, or an employee. These stages are:
Pre-Offer: Before extending a bona fide job offer, an employer may not seek medical information from an applicant. The employer may not require that an applicant submit to a medical examination or respond to medical questions.
Post-Offer/Pre-Employment: During the gap after a conditional job offer has been made and before employment begins, an employer generally may require an offeree to submit to a medical examination or to respond to medical inquiries. The employer must require the same exam or ask the same questions of all persons who will be entering that job classification.
Post-Employment: After employment begins, no medical examinations may be required and no medical questions may be asked unless the examination or question is job-related and consistent with business necessity.
Third, the cholesterol testing program that Fat Phil’s BBQ is considering is designed to obtain medical information from employees. Thus, the program falls into the third category and will only pass ADA muster if the request for medical information is job-related and consistent with business necessity.
Fourth, according to the EEOC, “a disability-related inquiry or medical examination of an employee may be ‘job-related and consistent with business necessity’ when an employer ‘has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.’”
Fifth, if we understand your letter, Chester, the cholesterol testing program that Karen has proposed (or mandated) is intended to help with marketing. You can argue that marketing is a business necessity, but that clearly is not the sense in which the phrases “job-related” and “consistent with business necessity” are used in the ADA.
Sixth, it may be important for Karen to understand the liability that can flow from requiring employees to submit to medical exams or respond to medical questions that are not job-related and consistent with business necessity. Earlier this week the EEOC announced a $139,366 settlement of a lawsuit in which the employer had fired an employee who refused to provide proof of her non HIV-positive status. The EEOC had filed suit because it alleged that the request for medical information was “unrelated to the employee’s job requirements or to any legitimate business necessity.”
The Bullard Edge understands that Fat Phil’s BBQ wants to project a healthy image. However, the mandatory cholesterol testing approach may put the chain at an elevated risk for ADA liability.
