Workplaces Warranting Lower Evidentiary Threshold for Finding an Employee to be a "Direct Threat"

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As discussed extensively in the previous blog entry, an employer may not order a fitness for duty evaluation unless the inquiry into the employee’s potential medical or psychological condition is “job-related” and “consistent with business necessity.” A medical or psychological examination is “job-related and “consistent with business necessity” when an employer has a reasonable belief based on objective evidence that, due to a medical or psychological condition, (1) an employee’s ability to perform essential job functions will be impaired, or (2) an employee will pose a direct threat to himself, herself or others.

The term “direct threat” is defined as:

“A significant risk of substantial harm to health or safety of self or others that cannot be eliminated or reduced by reasonable accommodation. A determination that a direct threat exists must be based on an individualized assessment of the employee’s present ability to perform the essential functions of the job safely, considering reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

  • Duration of the risk;
  • Nature and severity of the potential harm;
  • Likelihood the potential harm will occur; and
  • Imminence of the potential harm.”

29 C.F.R. § 1630.2(r).

The ADA text does not expressly describe how the “job-related” and “consistent with business necessity” requirements apply to medical evaluations as compared to psychological evaluations. However, there are particular factors, such as the nature of the workplace that may lower the evidentiary threshold for a “direct threat” basis when a potential psychological condition is the employer’s concern.

Two types of workplaces in particular have generated the most robust discussion of employee psychological examinations: (1) jobs in public safety and (2) jobs involving work with children.

Psychological Examinations of Employees in Public Safety Jobs

Courts have consistently found that special circumstances may exist in workplaces where employees respond to stressful situations and shoulder responsibility for public safety. See e.g. Conroy v. New York Dep’t. of Corr. Servs., 333 F. 3d 88 (2d. Cir. 2003) (correctional facility); Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir.2010) (police department); Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir.2009) (fire department); Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (juvenile unit of police department); Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir. 1999) (police department).

A lower threshold is particularly sufficient for a psychological examination in “any case where a police department reasonably perceives an officer to be even mildly paranoid, hostile, or oppositional…” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014). “The ADA does not, indeed cannot, require a police department to forgo a fitness for duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries.” Watson, 177 F.3d at 935. In these “public safety” workplaces, an employer may be justified in requesting a psychological exam on slighter evidence than in other types of workplaces because employees are “in positions where they can do tremendous harm if they act irrationally,” and thus they pose a greater threat to themselves and others. Kroll, 763 F. 3d at 623.

In Brownfield v. City of Yakima, the Court determined that the city had an objective basis to doubt a police officer’s ability to perform his duties (thus showed business necessity), where the officer exhibited highly emotional responses on numerous occasions, swore at a superior after abruptly leaving a meeting despite a direct order to the contrary, engaged in a loud argument with a coworker and became extremely angry when he learned the incident was being investigated, reported his legs began shaking and felt himself losing control during a traffic stop, his wife called police to report a domestic altercation, and made several comments to a coworker such as “It doesn’t matter how this ends.” The Court stated that “although a minor argument with a coworker or isolated instances of lost temper would likely fall short of establishing business necessity, the officer’s repeated volatile responses [were] of a different character.” Its determination that the FFDE was legitimate was heavily influenced by the nature of the employment – police officers are likely to encounter extremely stressful and dangerous situations during the course of their work. An employee’s ability to handle stress and work well with others was essential for his position.

In Michael v. City of Troy Police Dep’t., the court deferred to an employer’s judgment with respect to whether an employee was a direct threat. See 808 F. 3d 304 (6th Cir. 2015). The plaintiff, a patrol officer, had a history of deviant behavior, including suing the police chief to return possession of a collection of empty steroid vials, serving the police chief with process at his retirement party, and being seen in the company of drug dealers. The officer went on medical leave for surgery to remove a non-cancerous tumor. Because of his behavioral history, the city did not let the officer return to work unless he passed a psychological evaluation. The city scheduled a psychological fitness for duty evaluation with a neuropsychologist who concluded that the officer “may be a threat to himself or others.” The officer sought a second opinion with a doctor that concluded that he was fit for duty. Still concerned regarding the officer’s psychological condition and ability to perform his job, the city referred him for yet another (third) evaluation with a different neuropsychologist. This doctor also concluded that the officer might be a threat.

The Sixth Circuit stated that the city’s doctors’ opinions were sufficient because “the law requires only that the employer rely on an ‘objectively reasonable’ opinion, rather than an opinion that is correct.” Evidence of direct threat need not come from a medical opinion, and testimonial evidence of the officer’s conduct also supported the city’s determination.

It is important to make a distinction between this 6th Circuit opinion and the EEOC advisement that “[a]n employer should be cautious about relying solely on the opinion of its own health care professional that an employee poses a direct threat where that opinion is contradicted by documentation from the employee’s own treating physician, who is knowledgeable about the employee’s medical condition and job functions, and/or other objective evidence.”

In Michael v. City of Troy Police Dep’t., both of the city’s FFDE physicians examined the officer extensively and drafted detailed reports in which they both indicated he may be a threat to himself and others. Although the officer sought a second opinion from a neuropsychologist, who ultimately stated he was fit for duty, that neuropsychologist was not his treating physician. Accordingly, the EEOC’s advisement cautioning against deference to an employer-hired professional over an employee’s treating physician would presumably not apply in this case.

When an employer faces a situation, like that in Michael v. City of Troy Police Dep’t., in which multiple physicians provide conflicting medical information about an employee’s fitness for duty, the EEOC suggests considering:

  • The area of expertise of each medical professional who has provided information;
  • The kind of information each person providing documentation has about the job’s essential functions and the work environment in which they are performed;
  • Whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and,
  • Whether the medical opinion is contradicted by information known to or observed by the employer (e.g., information about the employee’s actual experience in the job in question or in previous similar jobs).


Psychological Examinations of Employees in Jobs Working with Minors

Courts have also consistently acknowledged that in the context of school employees, a lower evidentiary threshold may exist for finding a psychological evaluation to be “job-related” and “consistent with business necessity.”

In Mickens v. Polk County Sch. Bd., 430 F. Supp. 2d 1265, 1279–80 (M.D. Fla. 2006), the Court found that the School Board’s psychological examination of an employee was both job-related and consistent with a business necessity when that employee exhibited even mild signs of paranoid or agitated behavior that caused the school administration to question the employee’s ability to perform essential job duties. The employee had been involved in numerous arguments and altercations with other employees, which involved name-calling and threats of lawsuits, and there were reports of concern for the employee’s “unpredictable” behavior.

In Miller v. Champaign Community Unit School District, 983 F. Supp. 1201, 1206 (C.D. Ill. 1997), the Court stated, that “[a]s a matter of law a psychiatric examination is ‘job-related and consistent with business necessity’ when an elementary school employee shows even mild signs of ‘schizopheniform’ behavior. Because elementary school personnel deal directly with very young children, it is appropriate for principals and other school employees to require medical/psychiatric follow-up to any and all allegations of paranoia or other mental disorder”.

In Rodriguez v. Sch. Bd. of Hillsborough Cty., Fla., 60 F. Supp. 3d 1273 (M.D. Fla. 2014), the School district’s concerns regarding employee’s fitness for duty after she mentioned to school principal that she had previously considered suicide were reasonable and job-related. The employee’s proximity to children merited a psychological evaluation even with the single statement to the school principal.

This article only explores psychological examinations in the context of certain work environments. Of course, it is well established that maintaining a safe workplace is a definitive necessity of operating a business. Therefore courts have also found that a prophylactic psychological examination can satisfy the business necessity standard, even if the employee is not engaged in dangerous work.


Disclaimer: The information in this article is for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This article is not inclusive of all relevant information, which may apply to a specific topic. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to the content contained in this article does not create an attorney-client relationship between the Author and the user or reader.  Since the law is constantly evolving, California Medical Evaluators and the Author make no warranties, either expressly or impliedly, that the law, cases, statutes, and rules discussed on this website have not been subject to change, amendment, reversal, or revision or that this website is free from error.  

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