Under the Americans with Disabilities Act (ADA), employer-required medical exams must be “job-related and consistent with business necessity.” That test can be difficult to apply when you’re dealing with mental or psychiatric examinations. A recent decision from the U.S. 7th Circuit Court of Appeals—which covers Illinois, Indiana, and Wisconsin—helps clarify when you may require such examinations.
Mental Health and the Workplace
According to the American Psychological Association, 69% of employees report that work is a significant source of their stress, and approximately 50% of workers diagnosed with an anxiety disorder report that they have difficulty when interacting with their coworkers. Employees with anxiety or depression miss more days of work than their coworkers, and even when they are at work, they are far less productive.
The American Institute of Stress found that untreated mental health disorders cost employers $79 billion annually due to lost productivity and absenteeism. While not all workplace violence is caused by mental illness (and in fact, studies suggest the vast majority of people who suffer from mental illness are not violent), the U.S. Department of Justice has reported that between 25% and 30% of workplace violence victims were attacked by a work acquaintance rather than a stranger or a customer.
Employers are rightfully concerned about mental health in the workplace, but it’s difficult to know when action is warranted. Employees don’t always make explicit threats, but nevertheless say or do things that raise concerns. On the one hand, an employer may not be sure what to make of the behavior and may chalk it up to a “bad day,” but on the other hand, the stakes are too high to ignore.
Despite alarming statistics, employers are sometimes hesitant to take action in response to an employee’s “off” or borderline “weird” behavior, for fear of getting slapped with a discrimination charge or lawsuit. That can put you between a rock and a hard place. The 7th Circuit recently clarified when it’s permissible to require an employee to undergo a mental health examination.
Facts
“Melissa,” an office administrator, didn’t get along with her coworkers. They complained that she snapped and screamed at them, gave them blank stares and intimidating looks, mumbled to herself, and repeatedly banged drawers in her office. They feared that she might one day “go postal” and “become physically violent.” One coworker even changed her carpool pickup time so she wouldn’t leave work at the same time as Melissa.
Melissa had been on medical leave for a physical injury, and although her doctor deemed her physically fit for duty, he noted that she might have a personality disorder. She was evaluated by a psychiatrist, who found her symptoms “inconclusive.” She returned to work, but in a different department. Unfortunately, her difficulties continued.
Melissa used her work time to keep a detailed log of interactions with her new coworkers. After the workday ended, she e-mailed her new supervisor a summary of innocuous conversations that had occurred that day. For instance, she described a conversation with a coworker about where their children attended school. She also complained to her union representative about a clock that was set 30 minutes behind being a “tell-tale sign for [her],” as if it was a clue to some conspiracy. The union representative responded that he thought the battery in the clock was dead, to which Melissa responded, “Something’s dead alright—however, I prefer to be ‘a lady’ and not say what I think is dead. :).”
Melissa’s employer sent her back to the psychiatrist to determine whether she was a threat to herself or others. She was ultimately declared unfit for duty because of her “paranoid thinking and the highly disruptive behavior which results from her paranoia.” She apparently rejected the evaluation and sued her employer, alleging it had discriminated against her by requiring her to undergo the examination.
7th Circuit’s Decision
The 7th Circuit agreed with the trial court’s finding that the psychiatric examination was job-related and consistent with the business necessity of ensuring that Melissa could perform the essential functions of her job and didn’t pose a threat to herself or others. That was particularly true, according to the court, because her inability to work with her coworkers continued after she was transferred to a new department. In other words, the problem persisted—it wasn’t simply a personality conflict with one or two colleagues, and it was more than a few isolated instances.
The court held that an employer may require a medical examination if it “has a reasonable belief based on objective evidence” that an employee is unable to perform the essential functions of her job or will pose a threat because of a medical condition. In this case, the fact that multiple employees independently reported similar concerns that Melissa would one day become violent, and she continued the concerning behavior even after being counseled to stop it, was sufficient “objective evidence” that a medical condition might be preventing her from performing her job or that she might pose a threat to herself or others. The time she spent writing extensively about her coworkers in a “log” also kept her from completing her work tasks.
The court recognized that “employers need not retain workers who, because of a disability, might harm someone,” and an employer shouldn’t be forced “to risk a negligence suit to avoid violating the ADA.” Painter v. Illinois Department of Transportation, 2017 WL 6032504 (7th Cir., Dec. 6, 2017).
Bottom Line
Preventing employees from endangering their coworkers is a business necessity. Frontline supervisors should be trained to identify concerning behavior and work with HR to assess the next steps. Documenting any concerns in detail is key, particularly when employees are acting strangely but haven’t made veiled or actual threats.
HR should treat potential mental disorders the same as physical disabilities, including going through the interactive process. When objective evidence suggests an employee is unable to perform the essential functions of her job or may pose a threat to herself or others as a result of a medical condition, it may be appropriate to require her to undergo a mental health examination as part of a fitness-for-duty evaluation. If the employee is unable to perform the essential functions of her job (and that includes not posing a risk of harm), then you may not be required to continue the employment relationship.
In some situations, you might decide that maintaining workplace safety is worth the risk of a disability discrimination claim. Legal counsel can help you weigh those risks.
Angela N. Johnson, of Faegre Baker Daniels, is a contributor to Indiana Employment Law Letter and may be contacted at angela.johnson@faegrebd.com.