Recently, the Appellate Division found that an employer wrongfully required an employee to undergo a fitness-for-duty examination after receiving an anonymous letter expressing concerns about the employee’s mental condition. The anonymous letter stated:

I am writing this letter because I am very concerned about the mental well-being of [employee]. We as co-workers dread being assigned with him and everyone knows he has some sort of mental issues and I truly feel it puts us all at risk with his tirades and outbursts on a daily basis like the one he had today with his union stewards as well. The men and women here at _____ deserve to come to work and not be afraid of this man, we deserve a hostile free working environment and you as our employer are legally obligated to provide us such. For years we have complained about this man to former Director to our current administration in place now and it seems like a joke, it’s not. In 1992 there were over 750 workplace killings and this is no laughing matter; it’s very real and very serious. [Employee] is a time bomb waiting to explode and he needs help, and it’s your responsibility to ensure he gets it or provide some way for us to feel safe at work. I truly hope there is something you can do to ensure our safety, please don’t put the township[‘]s fear of liability ahead of the employee’s safety.

geabke

At the time the employer received the letter, the employee’s work performance was satisfactory, and he had not been disciplined for any wrongful conduct. In fact, the employer admitted that he was no different from other workers. The employer did not take any steps to investigate the allegations raised in the letter, but 8 months after receiving the letter, decided to require him to undergo an examination or face discipline. The employer admitted that his job performance had nothing to do with the decision to send the employee for the evaluation. The employee refused to be examined and was then disciplined by the Township for insubordination.

The Appellate Division eventually dismissed the discipline, finding that the employer violated the Americans with Disabilities Act by requiring the employee to undergo the examination. The Court noted that the employer did not meet its burden of demonstrating that the fitness-for-duty evaluation was job-related and consistent with business necessity. The employer also failed to demonstrate that the employee’s ability to perform his job was impaired by any suspected medical or mental condition. In addition, the employer failed to prove that the employee posed a direct threat to either himself or others or property.

What is the take-away? What do you do as an employer if you are concerned about an employee’s mental condition? As with a physical condition, if you are concerned about an employee’s mental health, you must be prepared to demonstrate the following, prior to requiring the employee to undergo a fitness-for-duty exam:

  1. Do you have a legitimate and supportable reason to believe that the employee poses a direct threat to his/her own health and safety?
  2. Do you have a legitimate and supportable reason to believe that the employee poses a direct threat to the health and safety of others?
  3. Do you have a legitimate and supportable reason to believe that the employee poses a direct threat to company property?
  4. Is the employee’s job performance suffering?
  5. Can you demonstrate that the employee’s ability to perform his/her job function is impaired by the suspected medical or mental condition?

If the answer to any of above questions is yes, you may require the employee to undergo a fitness-for-duty examination. At that point, you may send the employee to a doctor of your choosing and request that the physician provide you with a medical opinion as to whether the employee can safely perform the essential functions of his or her job without a significant risk of substantial harm to the employee or co-workers.

While we are all concerned about workplace safety and violence in the workplace, be careful your decisions are not based on anonymous letters, rumors, and innuendos, and that there are legitimate job-related reasons for the examination.

 

For more information about this and other employment-related topics, please contact Deborah Rosenthal, Esq. at 908-735-5161 or via email.