In a case of first impression in New Jersey, the Appellate Division cautioned that employers may only require an employee to undergo a mental health fitness-for-duty examination in limited circumstances. Relying heavily on the EEOC’s Enforcement Guidance, the Court held that such examinations are only permitted when an employer “has a reasonable belief, based onobjective 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.” In the Matter of Paul Williams, Township of Lakewood, 443 N.J. Super. 532, 120 A.3d 593 (Jan. 25, 2016) (emphasis added).
Paul Williams (“Williams”) was a truck driver with the Lakewood Township Public Works Department for nine years when, in March 2013, the Township received an anonymous letter allegedly from a co-worker claiming that several employees who worked with Williams were concerned for their safety. The letter also baldly alleged that “everyone knows [Williams] has some sort of mental issues” that put all of his co-workers “at risk.” While citing general statistics of workplace violence and describing Williams as a “time bomb waiting to explode,” the only description of any alleged workplace misconduct contained in the letter was an undetailed assertion of “tirades and outbursts” – some of which were purportedly directed towards the union shop stewards.
Without explanation, the Township failed to investigate and took no action on the claims in the letter for eight months. However, in December 2013, the Township ordered Williams to undergo a mental health fitness-for-duty examination. Williams refused to attend the exam, claiming that it was not “job-related” and “consistent with job necessity” under the Americans with Disabilities Act (“ADA”). In response, the Township terminated Williams’ employment for insubordination because of his refusal.
Williams appealed the Township’s decision through the administrative process and initially obtained an order of reinstatement. The case then made its way up to the Appellate Division after the Civil Service Commission reversed the ALJ’s decision, ruling that Williams had been properly terminated for insubordination but completely failing to address the legitimacy of the requested medical exam.
Focusing its analysis on the ADA’s prohibition against an employer requiring a medical examination or making inquiries of an employee “as to whether such employee is an individual with a disability” unless such examination or inquiry is shown to be “job-related and consistent with business necessity”, the Appellate Division greatly deferred to the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act. The EEOC Enforcement Guidance instructs that a medical examination or inquiry is “job-related and consistent with business necessity” when an employer has a reasonable belief, based on objective evidence that:
- an employee’s ability to perform essential job functions will be impaired by a medical condition; or
- an employee will pose a direct threat due to a medical condition, meaning that the employee poses “a significant risk of substantial harm” to his or her own health or safety, or to the health or safety of other persons or property, that cannot be eliminated or reduced by reasonable accommodation.
Adopting this standard, the Court held an employer meets this standard only when it formulates its belief upon information obtained through direct observation or received from credible sources.
Again relying on the EEOC Enforcement Guidance, the Court then noted a number of factors an employer should consider in determining if information from a third party is sufficiently reliable to support a request for a medical exam:
- the relationship of the person providing the information to the employee about whom it is being provided;
- the seriousness of the medical condition at issue;
- the possible motivation of the person providing the information;
- how the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and
- other evidence that the employer has that bears on the reliability of the information provided.
Measuring the facts against these standards, the Appellate Division criticized the Township for having failed to investigate the anonymous letter for over eight months but then relying on the letter as the sole basis for requiring Williams to undergo the exam. The Court offered steps the Township could have taken upon receipt of the anonymous letter under the ADA’s regulation which plainly permits an employer to “make inquiries into the ability of an employee to perform job-related functions,” 42 U.S.C. § 12112(d)(4)(B), such as soliciting information from the director and other supervisors about Williams’ job performance and interviewing the union stewards named in the anonymous letter about the alleged “outburst” cited in the letter.
Takeaway for New Jersey Employers
This case makes clear that New Jersey employers cannot require an employee to undergo a medical test that does not serve a legitimate business purpose. That said, the case also confirms that employers may require psychological exams when they have a reasonable, objective basis to do so that is job-related. Employers therefore should be careful not to rely upon vague rumors and innuendo to support a demand for an examination. Instead, prudent employers should demand such examinations only after they have themselves directly observed conduct that prompts them to reasonably believe an employee poses a direct threat or cannot perform the essential functions of his or her job because of a medical condition. When an employer does not directly observe conduct of this nature, the employer should promptly undertake efforts to determine if any third party information it has received is reliable and can be verified. An employer should look to the five factors set out by the Williams Court as a guide to determine if such information is sufficiently reliable.