Employment Law Daily Was required mental ‘fitness-for-duty’ exam unlawful? Jury to decide
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Thursday, August 18, 2016

Was required mental ‘fitness-for-duty’ exam unlawful? Jury to decide

By Marjorie Johnson, J.D. A jury will decide whether a university’s decision to require a professor to undergo a mental fitness-for-duty examination was job-related and consistent with business necessity, and thus lawful under the Rehabilitation Act and the California Fair Employment and Housing Act. Denying both parties’ motions for partial summary judgment, a federal district court in California determined that triable issues existed as to whether the HR director based his decision on unsubstantiated allegations or specific emails from students and staff demonstrating her outbursts and inability to perform her job. And since the exam never occurred due to her refusal to attend, it was also questionable whether it would have been sufficiently job related (Ellis v. San Francisco State University, August 11, 2016, Henderson, T.). Mental exam ordered. The employee worked for San Francisco State University as the director of its museum studies program for almost 25 years before working as the museum’s curator and professor in the program (which consisted of just two full-time faculty members and one staff member).On May 19, 2014, the HR director met with several employees after the employee’s colleague complained about her behavior and its effects on the students. At the close of the meeting, he recommended she be required to undergo a fitness for duty evaluation by the university’s psychologist. The university sent her two letters the next day. The first informed her that she was being placed on a paid suspension and directed her to undergo a fitness for duty evaluation. The second summarized the "strong and compelling evidence" supporting this decision. For instance, she engaged in a verbally threatening altercation with her colleague and told him to "shut up" and "you will get yours." The letter also claimed the university received information about her "unprofessional and inappropriate interactions with staff members" and that comments over the past two years reflected that she did not provide timely feedback on student theses. Fired after refusing. The professor swiftly refuted the allegations and requested that her attorney be present when meeting with the HR director. However, he responded that she would only be meeting with a "mental health professional." She then asked for more specific information about the accusations against her, but the HR director refused her request. She was suspended after refusing to attend the first scheduled evaluation and then terminated after refusing to attend the second scheduled exam. Business necessity? The professor claimed that there was no "business necessity" since the HR director’s decision was merely based on a desire for "expediency and convenience." She urged that the unsubstantiated allegations amounted to nothing more than "annoyances and inefficiencies" related to interpersonal relations among employees and workflow management and that he should have personally investigated the allegations prior to ordering the exam. Rejecting this standard, the court emphasized that the law does not require that complaints forming the basis for fitness for duty evaluations be corroborated by a formal investigation, nor must a recommend the evaluation instead of a university administrator. Rather, the employer must show "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job." Here, the university argued that her job responsibilities—and her "effectiveness as a professor"—were undermined by her behavior, and that the exam was the only effective and fair means for it to determine whether her work behavior was due to a medical condition requiring a reasonable accommodation. Exam not just an "investigative tool." However, a fitness for duty exam is not merely an "investigative tool" in an employer’s "toolbox," to be wielded any time it desired additional information about an employee. Rather, to protect employees from stigmatization and discrimination, it must have the requisite evidence that a business necessity warrants a properly tailored fitness for duty evaluation. Therefore, the crucial inquiry became what the HR director knew at the time he ordered the exam, which was clearly in dispute. What did HR director know? Here, student emails to the colleague showed that the professor had failed to provide timely feedback on their theses—an essential function of her job. The record also contained emails between the small staff suggesting that she engaged in unexpected outbursts and volatile interactions that seriously affected her two coworkers’ ability to work. While this behavior might have been a "mere annoyance or inconvenience" in a larger department, it became "far more precarious" in the leanly staffed museum studies program. Had the HR director been aware of these emails (which was disputed), it would have been reasonable for him to inquire whether she was still capable of performing her job without investigating himself. While the professor presented evidence suggesting the HR director didn’t see the emails until "a few days" after the decision, the university claimed he saw them at the May 19 meeting and relied on them in making his decision. In sum, triable issues existed on what he knew when he decided to order the evaluation, what information he actually considered, and whether that information was reliable enough to constitute a business necessity. Job relatedness. It was also debatable whether the mental evaluation—which never occurred—would have been tailored to assess the professor’s ability to carry out her job’s essential functions. The record suggested that the psychologist often received and reviewed information prior to the evaluation, but the doctor never opened the email allegedly containing such information due to the professor’s refusal to attend the evaluation. And while it also appeared that it was a common practice for the university to apprise the psychologist of the requirements of the job, it was unclear at what point this information transmission usually occurred and whether the information provided to him as to other faculty members would be the same as what he needed to evaluate the professor.

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