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ADA Blog #168

#Psychiatric/#psychological fitness-for-duty evaluation

When it comes to employees with #disabilities, the #ADA bans employers from ordering nonjob-related medical evaluations unless they are “job related and consistent with business necessity.”

According to the #EEOC guidance, “…medical examination of an employee may be 'job-related and consistent with business necessity' when an employer has a 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."

Last month, the 11th Circuit ruled for the first time that employees who seek protection under this ADA section don’t have to have a disability to bring their challenges, because [the way the law is written] the ADA doesn't require it.

The court said that a #Coca-Cola employee who made an ADA challenge against a company-ordered psychological evaluation didn't have to prove that he had a disability under the law to take advantage of the act, but it nonetheless ruled that Coca-Cola was within its right to order the evaluation because his mental health was a job-related concern. The court concluded that Coca-Cola had a reasonable, objective concern about the employee’s mental state, which affected job performance and potentially threatened the safety of its other employees.

This employee began working for Coca-Cola in 1999 as a call center customer service representative, and the company promoted him three times to ultimately become a quality assurance specialist. In this role, he monitored the performance of frontline call center associates. He primarily worked from home, but occasionally reported to the company's Dunwoody, Ga., center for meetings.
At one such meeting with his manager, the employee, who is from Ghana, revealed that between 2000 and 2009, he'd experienced several discriminatory incidents because of his nationality. He allegedly grew agitated during the meeting, banged his hand on the table where they sat, and said that someone was "going to pay for this," according to the opinion.
The manager was alarmed and consulted with her supervisor, and a company security manager recommended that this employee meet with an independent consulting psychologist who specialized in crisis management and threat assessment. After that meeting occurred, the doctor told Coca-Cola that he had concerns about the employee’s emotional and psychological stability, and said there was a strong possibility he was delusional. Coca-Cola then placed the employee on paid leave under the psychologist's suggestion.


The doctor continued to assess the employee and referred him to a psychiatrist, but when the employee met with the psychiatrist, he allegedly refused to answer questions about his employment and workplace issues.
However, he returned to the psychiatrist and underwent a personality test. He first refused but eventually took the test When Coca-Cola told him he needed to complete an evaluation (which included taking the Minnesota Multiphasic Personality Inventory-MMPI). to keep his job, he did so. After reviewing the test results, Coca-Cola allowed him to return to work.

The employee then sued Coca-Cola, alleging it violated a section of the ADA, which says employers can't test employees to determine whether they have a disability unless the test is job-related and is a business necessity.


The 11th Circuit said that section protects nondisabled individuals because the section's text only refers to “employees” and doesn't refer to “qualified individuals,” like other sections of the ADA that explicitly apply to individuals with disabilities.
Nonetheless, the court said in its opinion that Coca-Cola's evaluation of this particular employee was valid because an "employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position.”
Therefore, the evaluation was both job-related and consistent with business necessity and, therefore, permissible under the ADA.

It would seem that a requirement that employees not pose a significant safety threat in the workplace would obviously be consistent with business necessity: a safe workplace is a necessity of operating a business.

The way the EEOC guidance, is written is the issue. A "direct threat" defense is required only if the employer does not have objective evidence that a medical condition will impair an employee's ability to perform an essential job function. Coca-Cola stated that it indeed, had objective evidence – e.g., the concerns of the Supervisor and the observations and recommendations of the consulting psychologist – that the employee was under emotional distress and was exhibiting signs of mental instability. The court stated that "an employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position…absence of such skills prevents the employee from being 'otherwise qualified.'"

This case illustrates the importance of having clear policies that are implemented consistently company-wide. How many employees have raised their voices and banged on the table when complaining about workplace mistreatment without being considered a safety risk? Based on this employee’s report about prior discriminatory incidents between 2000 and 2009 because of his nationality, could an argument be made about harassment? In order to mitigate risk, a company should develop a policy of how such behavior should be addressed, train their supervisors/managers and security personnel, and apply the policy consistently to all employees.

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.




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