The Seventh Circuit recently ruled that non-disabled workers can recover back pay if unlawfully required to undergo a fitness-for-duty examination. The worker in question, John Nawara, was employed as a corrections officer and had “a series of heated altercations” with his superior officer, a human resources manager, and a third employee. Following the “heated altercations,” Nawara was placed on leave and, in order to return to work, Nawara’s employer required that he undergo a fitness-for-duty examination.

In response, Nawara filed a lawsuit, alleging his employer’s actions constituted an unlawful inquiry into his mental health under the Americans with Disabilities Act (ADA); specifically, the ADA provision that prohibits employers from requiring a medical examination or inquiring about an employee’s disability status unless it is job-related and consistent with business necessity. Notably, Nawara never claimed he was disabled nor that his employer perceived him as having a disability. At trial, the jury agreed with Nawara that the examination requirement and related requests for medical records violated the ADA. However, the jury did not award Nawara damages.

Nawara filed a post-trial motion requesting equitable relief in the form of back pay and restoration of his seniority. While the District Court agreed to order the restoration of his seniority, it denied his request for back pay. Nawara subsequently appealed to the Seventh Circuit. The Seventh Circuit reversed the District Court’s denial of backpay and ruled that Nawara was entitled to seek back pay as part of his remedy.

Although the ADA is commonly understood to only apply to disabled persons (and those who are perceived as having a disability), the Seventh Circuit held that non-disabled persons, like Nawara, may still invoke the protections of the ADA that prohibit employers from requiring a medical examination or inquiring about an employee’s disability status unless it is job-related and consistent with business necessity.

More importantly, the Seventh Circuit held that the mere act of unlawfully requiring Nawara to undergo a fitness-for-duty examination was in and of itself “a form of discrimination on account of disability.” In so ruling, the normal restrictions which prohibit the recovery of back pay were not applicable, and Nawara was entitled to recover back pay for his employer’s ADA violation.

Fitness-for-duty examinations remain a lawful, useful tool that employers can use in appropriate circumstances. However, the Seventh Circuit’s ruling, and a similar 2014 Sixth Circuit ruling, clearly demonstrate that employers must be cautious and judicious in their use of fitness-for-duty examinations. For more information or assistance with fitness-for-duty examinations, please contact a Bennett Law Firm attorney.