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Justifications for sick-leave policy’s ‘chronic-condition inquiry’ not shown as business necessity

By Kathleen Kapusta, J.D.

Because the Shreveport Police Department could not show that the chronic condition inquiry in its sick-leave policy was no broader or more intrusive than necessary, it failed to establish as a matter of law that any justifications it offered for the inquiry qualified as a business necessity, a federal court in Louisiana ruled, denying summary judgment against the Rehab Act claims of SPD officers. Most of their privacy claims under the Louisiana Constitution also advanced (Taylor v. City of Shreveport, August 24, 2016, Foote, E.).

The policy. The department’s policy requires sick leave to be documented after an officer uses any two days of undocumented sick leave in a calendar year. When an officer uses documented sick leave, a healthcare provider must complete a certificate indicating whether the “condition [that caused the officer’s absence] is chronic and whether intermittent absences related to the condition may be possible.” The officer must provide the sick-leave certificate “as soon as possible when leaving the medical appointment,” but no later than upon his return to work. The certificate is then forwarded to the SPD’s HR office. If it indicates that the officer’s condition is chronic, further certification of the condition is required.

The officers alleged that several aspects of the policy violated the ADA, the Rehab Act, and state law. Although the court previously dismissed their federal claims, the Fifth Circuit reversed as to their Rehab Act claim, finding that the chronic-condition inquiry gives rise to a prima facie claim of discrimination.

Business justifications. Moving for summary judgment on that claim, the SPD argued that the chronic condition inquiry fell within the business-necessity exception established by statute because the policy helps it determine whether an officer is able to perform his job’s essential functions; ensures the safety of other officers; assists it in scheduling officers to provide adequate police coverage; and allows it to determine if an additional medical exam is necessary before allowing an officer to return to work.

Fitness for duty. The court agreed that ensuring SPD officers are physically and mentally able to perform the essential functions of their job is vital to the department’s business. However, the SPD failed to show the chronic-condition inquiry was no broader or intrusive than necessary to further this need, as the events triggering the inquiry do not sufficiently suggest an officer is unfit to perform his duties. “Taking a few days of sick leave, by itself, does not constitute a legitimate, non-discriminatory reason to doubt a law enforcement officer’s ability to perform his duties,” the court stated, noting that the SPD looks into an officer’s chronic condition after he takes any three days of sick leave in a calendar year.

Even if the policy were to require a legitimate, nondiscriminatory reason to doubt job performance before it required a chronic-condition inquiry, the court found the inquiry would still be broader than necessary because it requires disclosure of chronic conditions regardless of whether they affect job performance or attendance. Thus, the inquiry was not limited in scope to what was needed to assess the employee’s ability to work.

And while the department argued that the policy did not require the healthcare provider to disclose the nature of the chronic condition, but only the fact that the officer suffers from a chronic condition and whether intermittent absences related to the condition might be possible, the court disagreed. The policy provides that “if the condition is chronic, evaluation and certification is required within each twelve month period,” and neither party provided information on the extent of this further certification and evaluation. Accordingly, the court found a fact dispute that had to be resolved in favor of the officers at this stage in the litigation.

Officer safety and scheduling. SPD also failed to show that the chronic-condition inquiry was no broader or more intrusive than necessary to further its vital business necessities of ensuring workplace safety and scheduling officer shifts; its policy is generic and does not limit itself to chronic conditions that could endanger other officers or limit its scheduling ability.

Further medical testing. Finally, the court found that SPD failed to establish that further medical testing, by itself, constitutes a vital business necessity. Observing that the chronic-condition portion of the sick-leave certificate is only completed when the healthcare provider clears the officer for full duty, and thus that the officer would already be cleared for work when disclosing a chronic condition, the court found there was no vital interest in needing to further test the officer.

Privacy claims. Turning to the officers’ claims that the SPD violated their right to privacy when a supervisor discussed one officer’s medical conditions with others on multiple occasions and when it implemented the chronic-condition provision, the court noted that at least one state court has held that the Louisiana Constitution prevents a state employer from disclosing an employee’s medical records to third parties. Thus, it declined to dismiss the officer’s claim that the discussion of her medical information violated the Constitution. To the extent, however, that the other plaintiffs asserted that the disclosure of medical information violated their right to privacy, the court dismissed their claims because they did not allege that their medical information was disclosed.

At least one lower Louisiana court has held that the state’s constitution prevents a state employer form requiring an employee to furnish medical records that are not related to a legitimate business necessity. Because the chronic-condition inquiry was potentially overly broad as it sought more information than necessary for any business necessity, the court also declined to dismiss this claim.