28 MAY 2019 • FOGHORN LEGAL the ability to perform the essential job functions. The EEOC describes the ad- mittedly challenging line between per- missible and impermissible inquiries as follows: “An employer is entitled only to the information necessary to determine whether the employee can do the essential functions of the job or work without posing a direct threat. This means that, in most situations, an employer cannot request an employ- ee’s complete medical records because they are likely to contain information unrelated to whether the employee can perform his/her essential functions or work without posing a direct threat.” In total, the “damned-if-you-do” concern that no medical questions can be asked is quite inaccurate, and should be replaced by an assumption that inquiries are allowed if properly justified by objectively supported safe performance concerns and established standards. In contrast, the “damned-if you- don’t” concern is quite accurate. Marine employers create significant exposure to employees and the general public when they fail to monitor employee job fitness every day the vessel sails. Clearly, while the USCG requirement for mariner medical certifi- cation every five years is well-meaning, and better than nothing, in reality it is of little benefit, in this author’s opinion, in establishing day-to-day physical job qualification. A single-day snap shot of a mariner’s health, such as the USCG certification represents, provides no safe harbor defense to a claim that a vessel’s management failed to observe and address a mariner’s apparent limi- tations on any given day. In the event of an unfortunate accident, deep probes will always be made as to whether a mariner’s physical debilitation or im- pairment contributed to the cause, and whether vessel management had the opportunity to avoid the situation. But I hear you . . . “What if a mariner does not disclose that he or she took medication that impairs, or has a condition that otherwise limits cognitive or physical performance?” Employees, dependent on a marine INTRODUCING THE X SERIES From the leaders in mixed flow technology comes the next generation of waterjet propulsion. Learn more at marinejetpower.com YOUR SEATING SOLUTION Phone: (417) 725-2667 marketing@springfieldgrp.com Commercial Catalog Available online