Under the ADA, an employer may require an employee to undergo a fitness-for-duty evaluation when it is job related and consistent with business necessity. A recent case out of New York found that sending an employee to an independent psychiatrist for an evaluation did not violate the Rehabilitation Act (same standard for testing as the ADA). The court held that the employer had a sufficient basis to obtain a medical exam to determine if the employee posed a threat to the safety of her co-workers after the employee was involved in an ongoing dispute with a co-worker and engaged in a long campaign against the co-worker that included sending multiple letters to management about various ways in which the employee believed the co-worker was breaking the rules including comments about the co-worker’s schedule, overtime, work assignments, clothing and personal life, a claim that the conflict with the co-worker was causing mental and physical pain to the employee, and the employer’s discovery that the employee was tracking the co-workers movements.
It is not entirely clear whether this holding would be reached in the 9th Circuit, where the business necessity standard may be met (even before an employee’s work performance declines) “if the employer is faced with ‘significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.’” Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010)(internal quotations omitted).
Bottom line: the business necessity standard is quite high and employers should be able to identify legitimate, non-discriminatory reasons to doubt an employee’s performance before requiring medical exams.