The world of disabilities can be a daunting place for employers; and even more so when the perceived disability is psychological in nature. With incidents of workplace violence frequently featured on the nightly news, employers are finding themselves in positions where they have to weigh the impact of an employee’s action towards his/her co-workers against that employee’s right to privacy. New Jersey employers now have a bit more guidance as to what may and may not be requested of employees who they fear may cause a threat to their workplace.
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The Superior Court of New Jersey, Appellate Division recently held that the Americans with Disabilities Act (the “ADA”) permits a New Jersey employer to require an employee to undergo a fitness-for-duty examination under limited circumstances. Quoting an Equal Employment Opportunity Commission Enforcement Guidance, the court found that fitness-for-duty examinations are permissible only when an employer “has a reasonable belief, based on objective 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, No. A-0341-15T2 (January 25, 2016).) In doing so, the court found that an employer did not have sufficient cause to request an examination based strictly upon an anonymous letter it received.
Paul Williams was a truck driver in the Lakewood Township Public Works Department for nine years. In March 2013, the Township Manager received an anonymous letter from “a very concerned employee.” That letter stated:
“I am writing this letter because I am very concerned about the mental well[-] being of [appellant]. We as co-workers dread being assigned with him and everyone knows he has some sort of mental issues and I truly feel it puts us all at risk with his tirades and outbursts on a daily basis like the one he had today with his union stewards [M.C., B.T., and P.R.] as well. The men and women here…deserve to come to work and not be afraid of this man, we deserve a hostile free working environment and you as our employer are legally obligated to provide us such. For years we have complained about this man to former Director [J.F.], to our current administration in place now and it seems like a joke, it[‘]s not. In 1992 there were over 750 workplace killings and this is no laughing matter[;] it’s very real and very serious. [Appellant] is a time bomb waiting to explode and he needs help, and it’s your responsibility to ensure he gets it or provide some way for us to feel safe at work. I truly hope there is something you can do to ensure our safety, please don’t put the [employer’s] fear of liability ahead of the employee’s safety.”
For some reason (and to its detriment), the Township waited more than eight months before ordering Mr. Williams to undergo a psychological examination to determine his continued fitness for duty. The sole purpose for requesting the examination was the anonymous letter. Mr. Williams refused to submit to the examination and was ultimately terminated.
The matter was appealed to the Civil Service Commission. While at the hearing there was testimony that Williams had been confrontational at times (though “no different than any other employee”), the Administrative Law Judge concluded that there was no basis to require Williams to submit to the psychological exam. On appeal, the full Commission reversed, finding that Mr. Williams’ refusal to take the exam constituted insubordination. It converted his termination into an unpaid suspension, and ordered Williams to submit to and pass the psychological exam in order to be reinstated. Williams appealed the Commission’s decision to the Appellate Division.
In analyzing the legality of Mr. Williams’ termination under the ADA, the Court found the psychological fitness-for-duty examination could only be ordered where it was “job-related and consistent with business necessity.” Specifically, the Court noted that employers must have “a reasonable belief, based on objective 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.”
Ultimately, the Court concluded that the Township did not meet this burden because the Township’s ordering of the examination was based solely upon the anonymous letter. As to the reliance that was placed on the letter by the Township, the Court stated the following:
[I]t is clear that, even though the letter made allegations of disruptive behavior, it did not represent the type of reliable information from a credible source upon which the Township could reasonably rely in ordering a psychological examination. The identity of the “[v]ery concerned employee at Lakewood Public Works” who sent the letter was unknown. Therefore, the information in the letter was exactly the type of innuendo and rumor that the EEOC has advised employers is insufficient to support a mandatory evaluation.
In examining the reliability of information provided by a credible third-party, the Court instructed that employers should consider: “(1) the relationship of the person providing the information to the employee about whom it is being provided; (2) the seriousness of the medical condition at issue; (3) the possible motivation of the person providing the information; (4) how the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and (5) other evidence that the employer has that bears on the reliability of the information provided.”
Applying these principles to the facts of the case, the Appellate Division found that the Township violated the ADA when it ordered Mr. Williams to participate in the psychological fitness-for-duty examination based upon the information contained in the anonymous letter, which the Appellate Division described as being “exactly the type of innuendo and rumor that the EEOC has advised employers is insufficient to support a mandatory evaluation.”
The Key Takeaway for New Jersey Employers
Situations like this one are difficult for employers, especially considering the horrific events that are becoming a too-frequent occurrence. Here, the Township may have found themselves in a different situation had they acted more quickly (waiting 8 months to take appropriate action is never advisable) and thoroughly. Performing an investigation into the allegations (instead of reacting based solely upon the contents of the anonymous letter) may have been sufficient to permit the Township to order the psychological evaluation. New Jersey employers should take note that some sort of investigation is required into all complaints received (anonymous or otherwise) before taking action. Had the Township completed that one extra step, they may very well have found themselves in a very different situation.