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ADA ruling against BNSF Railway upheld on appeal



A federal appeals court has affirmed a lower court ruling that held BNSF Railway Co. violated the Americans with Disabilities Act by requiring a job applicant who had had back problems to get an MRI at his own expense, in a case filed by the U.S. Equal Employment Opportunity Commission.

But the appeals court asked the lower court to reconsider the terms of a nationwide injunction issued in connection within the case.

Russell Holt received a conditional job offer from Fort Worth, Texas-based BNSF in June 2011 for the position of senior patrol officer, contingent on his satisfactory completion of a medical review, according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Equal Employment Opportunity Commission v. BNSF Railway Co.

Mr. Holt had previously suffered a spinal disc injury. Although his doctor reported he had no current problem, BNSF demanded Mr. Holt submit an MRI of his back at his own expense. His insurer said it would not cover the test because he was not currently in pain, which meant Mr. Holt would have had to pay more than $2,500 for the test.

Mr. Holt, who was in bankruptcy at the time of his job application, said he could not afford to pay for an MRI, and BNSF withdrew the job offer.

The EEOC filed suit against BNSF in U.S. District Court in Seattle, which ruled in favor of Mr. Holt and issued a nationwide injunction against the railway, stating BNSF must bear the cost of obtaining any additional information it deemed was necessary to complete a medical qualification evaluation. The injunction said if it chooses against obtaining additional information, it must use the medical information it does have to determine whether the applicant is medically qualified for the job.

A unanimous three-judge appeals court panel affirmed the court’s ADA ruling on appeal. When an employer requests an MRI at the applicant’s expense when there is an actual or perceived disability, “the employer is imposing an additional financial burden on a person with a disability because of that person’s disability,” said the ruling.

“In the case of an expensive test like an MRI, making an applicant bear the cost will effectively preclude many applicants, which is at odds with the ADA’s aim to increase opportunities for persons with disabilities,” the ruling said.

In addition, the ADA “requires employers to pay for reasonable accommodations unless it is an undue hardship — it does not require employees to procure reasonable accommodations at their own expense,” said the ruling.

The decision adds also that requiring employers to pay for this testing “would discourage unnecessary and burdensome testing of persons with disabilities or impairments, and prevent employers from abusing their ability to require tests.”

On the issue of the injunction, the ruling said, “We agree that the district court must make adequate factual findings to support the scope of the injunction … Whether an injunction should be entered in exactly the form and scope of the injunction as previously entered by the district court depends on the further review and findings to be made by the district court on remand,” said the panel.

In July, the Missouri Supreme Court in a unanimous en banc opinion overturned a lower court ruling and held BNSF has coverage under its Old Republic Insurance Co. policy for a $1.475 million judgment entered against an employee who hit another vehicle while driving a company-owned car while drunk.