Employers often must balance the mandates of seemingly competing directives. A challenging example arises in the area of possible mental impairment.  An employer may hear concerns that an employee is acting abnormally, or has hinted at a desire to hurt herself, or is exhibiting other possible signs of mental impairment.  The employer does not wish to stereotype the employee unfairly, or unlawfully “regard” the employee as disabled; yet, the employer also must ensure a safe work environment for other employees and others on the premises.

The employer often considers whether it can (or whether it must) require an employee to submit to a fitness-for-duty examination. Two recent cases with differing results provide guidance on the delicacy of this balance.

Anonymous Letter Not Sufficient

In a recent New Jersey case, In the Matter of Paul Williams, Township of Lakewood, the Court overturned the Township’s decision to terminate an employee when the employee refused a fitness-for-duty examination.  Initially, the Court confirmed that an employer has the right to require a fitness-for-duty examination under the Americans with Disabilities Act (“ADA”).  The Court cited the EEOC’s guidance as allowing an employer to require such exams but only when the employer has a “reasonable” belief, based on “objective” evidence, that:

• The employee’s ability to perform an essential function is impaired by a medical condition or
• The employee will pose a direct threat to himself or to others due to a medical condition.

The standard for reasonable belief based on objective evidence requires either:

• Direct observation or
• Reliable information received from credible sources.

Applying this standard, the Court ruled that the Township did not have a reasonable belief based on objective evidence.  The Township had received an anonymous letter, but had not acted upon that letter for some eight months.  The letter stated the employee had “some sort of mental issues” and that other employees were afraid of the employee.  The Township’s Director was not aware what action, if any, was taken to investigate the contents of the letter.  The Director further admitted that the reason for requesting the examination was not related to the employee’s performance but rather to the anonymous letter only.

The Court ruled the Township had a duty to conduct further investigation to corroborate the letter’s message of alleged mental instability before the Township conditioned further employment on submission to the examination.

Reports of Suicidal Comments Sufficient

On the other hand, in Barnum v. The Ohio State Univ. Med. Ctr, the Sixth Circuit Court of Appeals recently ruled that a medical center employer who required a nurse to undergo a psychological evaluation did not violate the law.  There, co-workers had raised numerous concerns about the employee’s work performance and her comments.  The complaints included

• That the employee did not appear able to concentrate, which manifested itself in at least one instance of inability to perform a routine task;
• That the employee made comments that she was “worthless” and perhaps should “put a gun to my head.”

Based on this information, the employee’s requirement that the employee submit to a psychological examination (essentially a fitness-for-duty examination) was not unlawful.

Lessons Learned and Practical Guidance

• Do not rely upon anonymous sources; you cannot confirm their truthfulness.
• Evaluate both reports of concerning comments and the employee’s performance
  • Are the concerning comments coupled with performance deficiencies?
  • Does the perceived mental impairment impact work performance or manifest itself in other observable conduct in the workplace?
• Investigate the concerns
  • Promptly upon receiving concerns (significant delay implies the concerns were not taken seriously when made and that some other motivation is at work when being investigated much later)
  • To ensure those complaining are not making stereotypical assumptions and have concrete examples to support concerns; and,
  • To ensure those complaining do not have some discriminatory animus or some other improper motive toward the person in question.
• While investigating, should the employer place the employee on leave?
  • Will depend upon the evidence of seriousness or threat;
  • If the evidence is sufficient to warrant placing someone on leave while investigating, it likely will be sufficient for the examination itself
    • But both steps in the process would be wise, especially to show the action was not taken in haste
    • Would suggest in this instance that any such leave be provided with pay.
• While investigating, how does the employer avoid disparaging the person about whom the concerns are raised?
  • The employer should ask open-ended questions initially.
  • The questions initially should not mention the person about whom the concerns are raised or the nature of the concerns.
    • From there, questions can become more pointed, as needed and as relevant information directs that inquiry.
    • Especially with an anonymous letter, discuss informally with employees working in the area if there are any concerns, and then narrow questioning without mentioning the letter’s disparaging comments.