And Yes, Employees Really Must Respond to Employers’ Questions About Their Medical Status


And, moreover, they cannot insist that their employers communicate only through the employee’s attorney. These were the lessons from the U.S. Court of Appeals for the Fourth Circuit in a recent case, Thomas v. City of Annapolis.

A police officer sustained an on-the-job injury that required surgery. He then experienced another injury and took a medical leave. The officer filed a charge of discrimination with the EEOC, alleging disability and race discrimination, as well as retaliation. While on leave, the officer failed to provide any updates about his medical status and refused to return any calls requesting such updates. He was then terminated for unsatisfactory work performance based on his refusal to return to full duty despite being cleared to do so, as well as his failure to stay in contact with his supervisors. The officer then sued under the Americans with Disabilities Act, among other things.

The Fourth Circuit rejected the officer’s contention that his job performance was, in his view, satisfactory. It first noted that it is the employer’s – not the employee’s – assessment of performance that is relevant. Also irrelevant was the fact that he had not received negative performance reviews or counseling. Rather, the Fourth Circuit found that the employer was entitled to rely on its belief that the employee was unwilling to return to work since he failed to return any calls. In other words, past performance does not outweigh current performance.

It is further worth noting that, although the officer argued that he informed his employer to direct all questions about his medical status to his attorney, the Fourth Circuit asserted that the City was entitled to find that the officer’s refusal to communicate directly with it to be unsatisfactory job performance. Many times, employees may wish to involve their attorneys in their disciplinary or other personnel issues with their employer; this case reiterates the principle that employers may continue to insist that they deal directly with their employees with regard to such matters. (Communications about litigation matters, of course, are different).