Labor & Employment Newsletter

Mental illness in the United States’ adult population is on the rise. In fact, an estimated 8.3 million – roughly 3.4 percent of the population – suffer from serious psychological distress, which is generally defined as a mental health condition serious enough to warrant medical treatment. Unfortunately, a large segment of those afflicted do not seek medical attention. So what’s an employer to do when an employee starts exhibiting a consistent pattern of bizarre behavior? May an employer require an employee to submit to a mental health examination to determine whether that employee is fit to perform necessary job duties? Under the correct circumstances, absolutely.


The Seventh Circuit recently found that an employer did not violate the American with Disabilities Act when it required an employee to submit to multiple mental health examinations after receiving numerous complaints that the employee was a potential safety risk to other employees and the general public. The court’s determination was consistent with the EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, which states that:

[w]hen a need arises to question the ability of an employee to do the essential functions of his/her job or to question whether the employee can do the job without posing a direct threat due to a medical condition, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.

In Painter v. Illinois Department of Transportation, the plaintiff filed suit, claiming her employer violated the ADA by requiring her to submit to unnecessary medical examinations in violation of the ADA’s prohibition against requiring employees to undergo medical exams that are not “shown to be job-related and consistent with business necessity.” The plaintiff’s employer first required her to submit to a fitness-for-duty examination after receiving, among other complaints, reports that the plaintiff yelled at co-workers, talked to herself, had mood swings, and co-workers were concerned that the plaintiff might become physically violent. The plaintiff’s initial examination was inconclusive, and she was required to submit to re-examination later. Following the second examination, the plaintiff was referred to a psychologist, who took on the plaintiff as a patient.

Despite the inconclusive evaluations, the plaintiff was allowed to return to work in a different department. The employer soon received new complaints regarding the plaintiff’s erratic behavior, including that she was keeping logs of co-workers’ conversations and sending odd, sometimes threatening, emails. Co-workers also complained that they feared for their safety, with one employee reporting that she changed her car-pool arrangement to avoid the plaintiff. The plaintiff’s employer documented its handling of those complaints, including gathering written statements from the plaintiff’s co-workers.

Again, the plaintiff was referred to a mental health professional. Despite the finding that statements from the plaintiff’s co-workers and supervisors caused him to suspect a personality disorder, the evaluator deemed the plaintiff psychiatrically fit to return to work. Soon after, for a third time, the plaintiff was referred to a mental health professional after she was cited for being, among other things, argumentative and for sending a threatening email to a union representative. Following two additional mental health examinations, the plaintiff was deemed not fit for duty due to her “paranoid thinking and the highly disruptive behavior which results from her paranoia.”

In affirming summary judgment and dismissing the plaintiff’s ADA claim, the Seventh Circuit found that “[p]reventing employees from endangering their coworkers is a business necessity.” Citing guidance issued by the Equal Employment Opportunity Commission, the court noted, however, “annoying or inefficient” behavior is not sufficient to warrant a required medical examination. Rather, an employer must meet a high burden of demonstrating “a genuine reason to doubt whether that employee can perform job-related functions.” In Painter, the court held that the employer met that burden because it established through multiple, documented statements and complaints, and other documentation, that the plaintiff posed a potential safety risk.


  1. As the number of cases of serious psychological distress rises among the adult population, employers must be proactive in developing policies for handling employees whose conduct demonstrates an unfitness to do essential job functions. Those policies must be followed consistently by employers.
  2. Document, document, document! In dismissing the plaintiff’s claim, the court noted in detail the employer’s efforts to document complaints, reprimands, email communications, and notes, which totaled over 160 pages. That documentation was the foundation upon which the employer based its defense against the plaintiff’s claims. In the absence of that evidence, the employer may not have been able to defeat the plaintiff’s claim at the summary judgment phase of the case.