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4477
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Can You Require Psychological

Exams for Some Employees?

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Telling someone, "You need to have your head examined" probably isn't a
good idea. Even if you believe it, you should never use those words when
talking to an employee. But there may be times when the statement is
accurate, such as when a worker's behavior crosses the boundary between
merely obnoxious and downright scary.
Can you require an employee to undergo a psychological exam? Under some
circumstances, yes but, among other requirements, you must strictly
adhere to the standards of the Americans with Disabilities Act (ADA).
The ADA addresses this issue most directly. A recent decision by the U.S.
District Court in central Illinois gives fresh "real life" meaning to hypothetical
ADA rules.
This issue falls under the purview of the ADA because a mental health
problem could be deemed a disability that employers need to accommodate,
instead of clear grounds for suspension or termination.

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Direct Threat
As with all ADA requirements, the basic test for employers is whether an
employee issue hampers the employee from performing essential job
functions, or poses a "direct threat" to business operations. When a problem
arises, "it may be consistent with business necessity for an employer to make
disability-related inquiries or require a medical examination," according to the
Equal Employment Opportunity Commission.

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Your determination that one or both of those conditions exists must be based
on "objective evidence obtained, or reasonably available to the employer"
before you require a medical exam, instead of merely being based upon
general assumptions. Evidence can include "information learned from another
person," such as co-workers or a supervisor, so long as it would "give rise to a
reasonable belief" that a serious issue exists.

Ordinarily, if an employee is seeking an accommodation under the ADA, that

person will supply evidence from his or her own health care professional.
However, you can still require that the employee submit to a medical exam by
a health care provider that you designate if you aren't persuaded by what you
learn from the employee's provider. The scope of the medical exam and
information shared with you must strictly be job-related.
Note: Under the ADA's standards, "psychological tests that are designed to
identify a mental disorder or impairment" are covered under the definition of
a legitimate "medical examination." However, "psychological tests that
measure personality traits such as honesty, preferences, and habits," do not.

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Essential Functions
The process can be streamlined if you believe an employee's condition poses
a "direct threat" to "safely perform the essential functions of the job." What
kind of threat? The EEOC doesn't spell that out, but it could be a direct threat
to the employee him, to customers or co-workers.
The threat to co-workers was the subject of the recent litigation.

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Facts of the Case

An employee of the Illinois Department of Transportation had built up a track
record of troubling behavior and comments to co-workers, including false
accusations of mistreatment. Her supervisor conducted an investigation and
kept records of statements made by co-workers.
The supervisor eventually required the employee to be examined by the
agency's "fitness for work" physician, who gave the employee provisional
approval to stay on the job, with a recommendation for a follow-up
examination "based on the [employee's] mood swings and her fast
pressurized speech during his evaluation.
Later, co-workers expressed concern for their personal safety because she was
prone to outbursts and to walking around at work talking to herself. Some said
they feared she might become physically violent, and as a result, asked to be
escorted to their cars after work.

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Menacing Email
In one email exchange, the employee made a cryptic reference that included
the statement, "Something's dead alright however, I prefer to be 'a lady'
and not say what I think is dead," followed by a smiley face emoticon. That
comment was deemed to be particularly menacing.
After a second evaluation by a physician, the employee was referred to a
psychologist and was allowed to return to work after a paid leave of absence.
She was transferred to a different department, where she maintained a
detailed log of her interactions and conversations with her new co-workers, as
well as conversations she overheard between colleagues.

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When questioned about the purpose of the logs, she explained she was trying
"to figure out why she was put on leave." Later, she apparently realized that
her supervisor was concerned about the time she spent logging the
conversations rather than working. In response, she began sending the
supervisor "numerous emails." Some of the messages were sent in the middle
of the night and were described in the court record as "nonsensical and not
work-related.
She was subsequently examined by another psychologist, who concluded she
suffered from a paranoid personality disorder. This condition, combined with
"the highly disruptive behavior that is resulting from her paranoia," rendered
her unfit for work, said the second psychologist. After losing that job, the
former employee spent roughly two years unemployed.

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Employer Vindicated
Later, after getting a job with a different state agency, the employee sued her
former employer claiming "she suffered the adverse action of prohibited
medical examinations over the nearly two years when she was on disability
leave without income," according to court documents.
The court rejected the employee's claims by stating the original employer's
actions "were based on legitimate concerns and its employees reasonably
responded to the situation which they encountered.
Note that the response the court called "reasonable" included the employer
focusing on the work-related impact of the behavior, carefully documenting
the problematic conduct, and not acting too hastily in letting her go.
Clearly, this is a sensitive area to handle in any workplace. If your company is
faced with a potential employee mental health issue that affects your
workforce, consult with an employment attorney to make sure you proceed in
the right direction.

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