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City directive requiring physician’s note upon return from medical leave did not violate the Rehabilitation Act or constitutional protections on informational privacy

A city’s directive — which required police division employees returning to duty following sick leave, injury leave, or restricted duty to submit to their immediate supervisor a copy of their physician’s note stating the “nature of the illness” and whether the employee is capable of returning to regular duty — did not violate the Rehabilitation Act and the privacy provisions of the First, Fifth, and Fourteenth Amendments of the U.S. Constitution through Sec. 1983, ruled the Sixth Circuit (Lee v City of Columbus, Ohio, February 23, 2011, Griffin, R).

The plaintiffs consisted of two certified classes, all of whom were current or former employees of the City of Columbus, Division of Police. Upset by the mandatory disclosure and funneling of confidential medical information through immediate supervisors, they asserted class claims under the Rehabilitation Act and Sec. 1983. A federal district court granted summary judgment in favor of the plaintiffs on both claims and entered a permanent injunction prohibiting the city from enforcing the directive.

In reversing the district court, the appeals court first held that the city’s directive comported with the Rehabilitation Act and did not violate the proscriptions pertaining to disability-related inquiries set forth in Sec. 12112(d)(4)(A) of the ADA, incorporated by reference into the Rehabilitation Act. There was no evidence that the “generalized and uniform inquiry” mandated in the directive was intended to reveal, or necessitated revealing, a disability. Even if the requirement of the directive could be characterized as a disability-related inquiry, it did not violate the ADA (and thus, also not the Rehabilitation Act) because it was a universal sick-leave policy applicable across the board to all division employees, disabled or not, who use contractual sick leave for a personal illness of more than three days or a family illness of more than two days, as well as those employees who are on a sick-leave verification list. Because the city’s implementation of the directive did not constitute an adverse employment action, the plaintiffs failed to establish a prima facie case of disability discrimination under the Rehabilitation Act.

Second, the Sixth Circuit ruled that the directive did not raise an informational privacy concern of a constitutional dimension because it did not implicate the preservation of life and personal security interests recognized in its 1998 decision in Kallstrom v City of Columbus, or the interest in shielding sexuality and choices about sex, protected in another decision it issued in 1998, Bloch v Ribar. Furthermore, the plaintiffs had no basis to challenge the directive based on their unwarranted speculation that their immediate supervisors would disobey it, according to the court. Supervisors were obligated to follow the city’s policies, which included express prohibitions against the disclosure of confidential information, the court pointed out. Accordingly, the appeals court vacated the district court’s permanent injunction prohibiting the city from enforcing the directive, reversed the lower court’s grant of summary judgment to the plaintiffs, and remanded the case for entry of judgment in the city’s favor.