Avoiding ADA & FEHA Violations: Deciphering the Meaning of "Job-Related and Consistent with Business Necessity" in the Context of Fitness for Duty Evaluations
Under the American with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), an employer may require a medical exam or make a disability-related inquiry of an employee as long as the inquiry or exam is “job-related and consistent with business necessity.”
The Equal Employment Opportunity Commission (EEOC) Guidance states that a medical examination is “job related and consistent with business necessity” when an employer “has reasonable belief based on objective evidence that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”
- A “reasonable belief” that an employee cannot perform essential job functions or poses a safety threat “requires an assessment of the employee and his or her position and cannot be based on general assumptions.” (EEOC Notice 915.002)
- A “direct threat” means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. 29. C.F.R. 1630.2(r).
The objective standard, as described by the EEOC, may be met where the employer knows of an employee’s medical condition, has observed performance problems and can reasonably attribute the problem to the medical condition. The standard may also be met where the employer is given reliable information by a credible third party that an employee has a medical condition or observes symptoms indicating that an employee may have a medical condition that will cause him or her to pose a direct threat to himself/herself, other employees, or the public.
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 or her job. An employee’s behavior cannot be merely annoying or inefficient to justify an examination, but rather, there must be genuine reason to doubt whether that employee can perform job-related functions. Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010).
The Ninth Circuit has explained that the “business necessity” standard is quite high, and is not to be confused with mere expediency. Cripe v. City of San Jose, 261 F.3d 877, 890 (9th Cir. 2001). Such a necessity must “substantially promote” the business’ needs. Nonetheless, courts “will readily find a business necessity if an employer can demonstrate that a medical examination or inquiry is necessary to determine . . . whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his . . . duties.” Domingo v. Donahoe, No. C13-04151, 2015 WL 1738345 (N.D. Cal. April 13, 2015) (citing Conroy v. New York State Dept. of Corr. Servs., 333 F.3d 88, 98 (2d Cir. 2003)).
Moreover, the business necessity standard can be met even before an employee’s work performance declines if there is significant evidence that could cause a reasonable person to inquire whether an employer is capable of performing his job. See Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010). An employee’s ability to handle reasonably necessary stress and to work with others is an essential function of any position. Domingo v. Donahoe (citing Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1311-12 (11th Cir. 2013)).
Despite guidance from the EEOC and instruction from the 9th Circuit, specifically what types of events, observations or incidences warrant a fitness for duty evaluation that is “job-related and consistent with business necessity” can understandably invoke concern or uncertainty for HR managers trying to navigate Federal and State law restrictions while maintaining a safe and productive workplace. Certainly, any decision to demand an FFDE will be based on, among many other factors, the severity and frequency of the observed or reported performance issues, the industry in which the employee works, safety concerns for the employee and others, and the effect of any medical or psychological condition on the particular job duties of the employee’s position. Nevertheless, it is helpful to review examples of when FFDEs have been designated by judges as “job-related and consistent with business necessity.”
The following are examples of cases where a court of law decided that an employer’s demand to have an employee undergo a fitness for duty evaluation was “job-related and consistent with business necessity”:
- An FFDE was appropriate where an office administrator at the state department of transportation had exhibited disconcerting behavior at work as reported by numerous (more than 10) co-workers. The co-workers had reported to HR that they (1) felt unsafe around the employee and did not want to be alone with her, (2) wanted security to escort them to their cars for fear of the employee approaching them at night, and (3) had witnessed the employee having angry outbursts and talking fast-paced to herself frequently. The employee also sent numerous emails to her supervisor – in the evenings and middle of the night – with nonsensical, non work-related ramblings. The employee underwent numerous evaluations but the first fitness for duty evaluation was conducted approximately one month after the employee first exhibited disconcerting behavior with a co-worker. Painter v. IL Dept. of Trans., Case No. 13-3002, 2016 WL 3961720 (C.D. Ill. July 21, 2016).
- A Certified Registered Nurse Anesthetist, over a 2-4 week period, showed a lack of concentration while in the operating room. Her supervisors received a gradual escalation of undocumented reports from surgeons, operating room nurses, anesthesiologists and other CRNAs regarding the employee’s ability to concentrate on taking care of patients. During one incident, one of the surgeons had to ask her multiple times to adjust the patient’s operating table because she was not paying attention. She responded with suicidal ideations and cried. The employer was justified in requiring her to undergo an FFDE. Barnum v. Ohio State Univ. Med. , No. 15-3450, 2016 WL 683251 (6th Cir. Feb. 19, 2016).
- A 4th grade teacher suffered from renal failure and required dialysis 3x per week. Due to her condition, she experienced pain and discomfort, difficulty balancing, suffered shortness of breath and occasionally had arm and leg cramps that required her to use a walker. Over the course of the school year, numerous concerns arose regarding the teacher’s job performance, specifically, her ability to manage the classroom and disruptive children, her ability to implement reading curriculum and accurately report grades, frequent absences, and her ability to perform the physical demands of the job, including, taking precautions to ensure safety in emergency situations and providing appropriate student supervision. The job performance issues were believed by the employer to be a result of her medical condition and she was required to undergo a FFDE. Belasco v. Warrensville Heights City School District, 86 F. Supp. 3d 748 (N.D. Ohio 2015).
- An HR Analyst working for the city suffered a stroke resulting in paralysis and speech issues. Despite providing a report from her treating physician, which instructed that she was fit to perform her job duties with certain accommodations, the employer was justified in ordering a fitness for duty evaluation because of concerns she wouldn’t be able to perform her job (even wit the recommended accommodations). The case involved a significant discussion of the importance of effective verbal communication in the employee’s role as an HR analyst in concluding that the FFDE was substantiated. Carlson v. City of Spokane, 13-CV-0320, 2014 WL 5334264 (E.D. Wash. Oct. 20, 2014).
- The USPS’ demand that a letter carrier undergo a third fitness for duty evaluation to resolve conflict in two prior psychological evaluations was appropriate where employee had been involved in angry altercations with co-workers and the USPS had received multiple reports from other employees that they felt uncomfortable or threated by the employee. Co-workers reported a change in the employee’s behavior from friendly to “extremely withdrawn and non-communicative” and the employee had told co-workers that he often heard voices. Domingo v. Donahoe, C13-04151 (N.D.Cal. April 13, 2015).
Moreover, an employer may be justified in ordering an employee to undergo a FFDE to resolve conflict in competing doctor reports. The Ninth Circuit has held that an employer may request another fitness for duty examination where a first examination found the employee unfit, and the employee subsequently submits a report by a treatment provider stating that the employee is fit. See Brownfield, 612 F.3d at 1145.
The burden of proving that a fitness for duty evaluation is and was “job-related and consistent with business necessity” is on the employer. Be sure to document any all observations, employee leaves of absence, co-worker accounts or reports and maintain thorough and complete personnel files, including, all employee doctor notes.
* Note, that not all of these decisions come out of California courts and not all of these decisions have been published (i.e. they do not constitute binding precedent in a California court). That being said, these cases do have value in that they illustrate situations warranting fitness for duty evaluations and can be used as persuasive authority to influence a judge in California.
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