New Jersey Appellate Division Clarifies When Employers Can Require Employee Psych Examinations
The circumstances under which a company or organization may require an employee to undergo a medical examination can be confusing for employers, and for good reason: The “rules” are cobbled together from a variety of sources and are from the model of clarity. The Appellate Division of the Superior Court of New Jersey recently attempted to synthesize and clarify these rules in the case of In re Williams, a decision whose importance will likely increase as disability and reasonable accommodation issues continue to be fertile ground for plaintiffs’ attorneys. 2016 N.J. Super. LEXIS 15 (App.Div. Jan. 25, 2016)
The employer in In re Williams received the following anonymous letter concerning one of its employee truck drivers: “I am writing this letter because I am very concerned about the mental well[-]being of [appellant]. 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 [M.C., B.T., and P.R.] as well. The men and women here…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 [J.F.], 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. [Appellant] 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 [employer’s] fear of liability ahead of the employee’s safety.” Id. at *2-3.
According to the record, the employer waited more than eight months before ordering the employee, based solely on the anonymous letter, to undergo a psychological examination to determine his continued fitness for duty. The employee refused and was terminated as a result.
In analyzing the legality of the employee’s termination under the Americans with Disabilities Act (ADA), the Appellate Division reviewed the ADA’s text, as well as the Equal Employment Opportunity Commission’s (EEOC’s) regulations and Enforcement Guidance, and distilled the general rule for when a psychological fitness-for-duty examination is considered to be “job-related and consistent with business necessity” and thus, lawful: “[A]n employer may only require an employee to undergo a psychological fitness-for-duty examination when the employer has a reasonable belief, either through direct observation or through reliable information from credible sources, that the employee’s perceived mental state will either affect his or her ability to perform essential job functions or that the employee poses a direct threat. As the EEOC has observed, the employer’s ‘reasonable belief . . . must be based on objective evidence obtained, or reasonably available to the employer, prior to . . . requiring a medical examination. Such a belief requires an assessment of the employee and his/her position and cannot be based on general assumptions.’ (Citation omitted)” Id. at *19.
Further citing the EEOC’s Enforcement Guidance, the Appellate Division noted that in examining the reliability of information provided by a credible third-party, employers should consider: “(1) the relationship of the person providing the information to the employee about whom it is being provided; (2) the seriousness of the medical condition at issue; (3) the possible motivation of the person providing the information; (4) how the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and (5) other evidence that the employer has that bears on the reliability of the information provided.” Applying these principles to the facts of the case, the Appellate Division found that the employer violated the ADA when it ordered the employee to participate in the psychological fitness-for-duty examination based upon the information contained in the anonymous letter, which the Appellate Division described as being “exactly the type of innuendo and rumor that the EEOC has advised employers is insufficient to support a mandatory evaluation.” Id. at *16-17. Notably, the result may have been different if the employer had investigated the allegations in the anonymous letter, as opposed to relying on the letter itself as the sole basis for its order requiring the employee to submit to the evaluation.
This is a tough decision for employers, particularly given the complexities and seriousness of mental illness and the threat of violence in the workplace. And in today’s day and age, receiving an anonymous letter like the one in In re Williams is unfortunately not as uncommon as one might think. However, the ultimate takeaway for employers is that before you can order an employee to undergo a psychiatric evaluation (or any type of medical examination for that matter), certain information needs to be gathered and factors need to be considered. Ultimately, doing the necessary groundwork will put the employer in a better position to succeed in the event the employee decides to pursue litigation.
If you have any questions about how this could impact your business, please contact:
- Caroline J. Berdzik (609.986.1314; firstname.lastname@example.org)
- Michael S. Katzen (609.986.1319; email@example.com)
- Or another member of the Goldberg Segalla Employment and Labor Practice Group.