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Employers May Soon Have More Leeway to Require Medical Examinations of Employees


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By Robert Crump

The U.S. Court of Appeals for the Eleventh Circuit recently handed down an important decision regarding just what employers must show in order to conduct non-routine psychological evaluations of employees who are otherwise considered free of any psychological conditions.  In a broader sense, the decision laid out how employers can establish a defense against employee lawsuits alleging improper medical examinations under the Americans with Disabilities Act (ADA).

A call center supervisor displays troubling behavior
In Georgia, an employee worked mostly from home as a quality-assurance specialist and a supervisor for a call center (the figurative man behind the curtain in the all too familiar “your call is being monitored for quality assurance” scenario). In 2007, during a conference with his manager, the employee claimed that he had suffered workplace harassment for multiple years, stemming from his race and national origin. From that meeting, the manager observed that the employee “became agitated during the meeting, banged his head on the table where they sat, and said that someone was ‘going to pay for this.’”

Worried about his behavior, the company directed the employee to speak with an independent psychologist that specialized in crisis management and threat assessment. After an initial consultation, the psychiatrist reported back that there was a “strong possibility that [the employee] was delusional,” and recommended “that he be placed on paid leave to allow for further evaluation.”

Allegedly, the employee refused to cooperate with the follow-up evaluation, prompting the company to send him a letter stating that as a condition of his continued employment, he was to “complete an evaluation to identify whether there were any issues that could represent a risk to the safety of others in the workplace.” Failure to do so would be treated as a resignation.

After the further evaluation, the employee was cleared to return to work. However, he later sued the company, alleging that the evaluation violated his rights under the ADA. The ADA protects employees from undergoing nonconsensual medical exams, unless the employer can show that the exam is job-related and consistent with a business necessity. Therefore, the employer must show that it had a valid reason for mandating the employee to undergo an examination and that it was related to the employee’s job.

In this case, the Eleventh Circuit decided the company had enough cause for concern to escalate the examination. After all, the employee had previously refused to speak to the company’s agents about his alleged workplace problems and the psychiatrist had recommended that the employee undergo further fitness-for-duty evaluation. The examination was thus job-related. Moreover, the exam met the business necessity test because of the real, legitimate concern for workplace safety. The court also rejected the employee’s argument that the employer, under EEOC guidelines, must prove that the employee was a “direct threat,” in order to establish the examination has a business necessity.

An enabling decision for employers?
There are two major takeaways from the holding. The first is that an employee does not have to be “disabled” in order to have standing to sue an employer under the ADA, if required to undergo medical examinations/evaluations. The second is that even where an employee has no recognized psychological condition, an employer may still require that employee to undergo a psychological evaluation if they can prove the evaluation is job-related and a business necessity. The decision is a positive one for employers. In the end, it sets a relatively low bar for psychological evaluations.

Read the decisions here.

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