This preview shows page 1. Sign up to view the full content.
Unformatted text preview: not.
III. Job-Related/Consistent with Business Necessity
In addition to requiring Sharp to submit to a medical examination for the direct threat
analysis, the majority also holds that a medical examination was job-related and
consistent with business necessity. Maj. slip op. at 8. However, the ADA provides:
A covered entity shall not require a medical examination and shall not make inquiries of
an employee as to whether such employee is an individual with a disability or as to the
nature or severity of the disability, unless such examination or inquiry is shown to be jobrelated and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A). See also 29 C.F.R. §§ 1630.13(b) and 1630.14(c). Jobrelated and consistent with business necessity requires that the medical test serve a
"legitimate business purpose." S. Rep. No. 101-116, at 39 (1989); H.R. Rep. No. 101485 (II), at 75 (1990); H.R. Rep. No. 101-485 (III), at 44 (1990); 29 C.F.R. pt. 1630,
App. §§ 1630.13(b), 1630.14(c) (1997) (Interpretive Guidelines). n5 According to the
majority, "Prevo's legitimate business purpose and business necessity [**46] was to
protect the health of Sharp, its other employees and the general public from HIV
infection. Because of the frequency of bleeding in the produce area, Prevo's needed to
verify Sharp's medical condition, determine whether he had other conditions associated
with HIV, and determine whether he was aware of and able to follow safety procedures
to reduce or eliminate any risk of infection." Maj. slip op. at 10.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n5 As the majority correctly notes, in Gilday v. Mecosta County, 124 F.3d 760, 766 (6th
Cir. 1997) (Kennedy, J., concurring in part, dissenting in part), one judge wrote that "the
appendix constitutes a set of interpretative, rather than legislative, rules and is, therefore,
not binding law. Nevertheless, such administrative interpretations of the ADA by...
View Full Document
- Spring '08