by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
December 14, 2017
Consider this situation: Your employee Melvin is exhibiting alarming behavior – aggressive interactionswith 
coworkers, loud banging of drawers and doors, unfounded suspicions of surveillance, incomprehensible mumbling or rants. Melvin has not asked for time off or any sort of workplace accommodation, but you are concerned about whether Melvin is capable of performing his job, or worse, whether he presents a threat to the safety of himself or his coworkers.
Can you make Melvin undergo an independent medical exam (IME) to assess his mental fitness to work? In two recent lawsuits, coming at the issue from two different angles, the courts each ruled “yes,” as long as certain conditions are met. This blog post starts a series of 3 articles addressing these new cases and mental health exams under that ADA. Read on to learn how coworker safety and “regarded as” ADA discrimination meet in the IME examination room (figuratively speaking).
Setting the stage. Under the ADA, any type of medical examination must be job-related and consistent with business necessity. According to the EEOC, this is established when the 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.
The employer’s reasonable belief must be based on objective evidence obtained prior to requiring a medical examination. This requires an assessment of the employee and his/her position and cannot be based on general assumptions. EEOC Enforcement Guidance on Medical Inquiries and the ADA.
“Preventing employees from endangering their coworkers is a business necessity.” Our first case study is Painter v. Illinois Department of Transportation. Deanna Painter was as an Office Administrator for the Illinois Department of Transportation. Previous coworkers complained about Painter’s behavior, stating that she frequently snapped and screamed at them, gave intimidating stares, ranted, mumbled to herself, and banged drawers in her office. Her coworkers were concerned she would “go postal.” Current coworkers reported that she glared and growled at them, kept a log of all their actions, and was angry, abrasive, and threatening. She also wrote an email to her union representative about a clock that was 30 minutes fast, stating that the clock “was a tell-tale sign for me. It told me everything I needed to know.” She then made a comment in the email about something being dead. The union rep took this as a death threat and refused to communicate with her further. (That, of course, speaks volumes when even the union rep is afraid to talk with an employee!)
IDOT put her on paid administrative leave and required her to undergo an IME with a psychiatrist. The psychiatrist concluded that Painter might suffer from a personality disorder but nonetheless cleared her to return to work. After her return, complaints from coworkers started anew. Painter was reprimanded but the conduct continued, including argumentative, confrontational, insubordinate, and disruptive behavior.
IDOT again placed Painter on a paid administrative leave and sent her for another IME with the same psychiatrist. The psychiatrist reviewed extensive additional notes, emails, and documents regarding Painter’s behavior. This time he concluded that Painter was unfit for duty because of her “paranoid thinking and highly disruptive behavior which results from her paranoia,” which is a risk factor for violence.
Painter sued IDOT, alleging that it had violated the ADA by forcing her to attend “unnecessary” medical examinations. The 7th Circuit Court of Appeals disagreed and found both psychiatric IMEs to be job-related and consistent with business necessity. The court concluded, “Preventing employees from endangering their coworkers is a business necessity: a safe workplace is a paradigmatic necessity of operating a business.” Both exams followed extensive unstable conduct by Painter and numerous complaints by coworkers about concern for their safety due to her conduct. Importantly, the court noted the choices an employer faces in this situation and came down on the side of the employer:
Employers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.
Painter v. Illinois Department of Transportation, (7th Cir. Dec. 6, 2017).
Pings for employers
- Multiple observers. Numerous coworkers observed and reported Painter’s
actions over many months leading up to the first IME and then the second exam.
While some situations may require faster action, in this case the amount of
information about Painter’s conduct was helpful to the employer’s case. - Document, document, document! Painter’s supervisor kept detailed notes of
her actions and his discussions with her, as well as her odd emails. He also
gathered written statements from her coworkers. These proved very important
in the court’s analysis of whether IDOT had sufficient grounds to require the IMEs
as job-related and consistent with business necessity. - Level of odd conduct. Don’t order medical evaluations based on minor incidents
of strange behavior. As the Painter court observed: “That an employee’s behavior
could be described as annoying or inefficient [does not] justify an examination; rather,
there must be genuine reason to doubt whether that employee can perform
job-related functions.” - Direct threat? Maybe not. The court did not specifically analyze whether Painter’s
conduct established that she presented a “direct threat” to coworkers. The burden
to prove this element is quite high –the analysis includes consideration of how imminent
and likely the threat is, as well as the anticipated duration and severity of the threat.
In the Painter case the court chose to focus on the employer’s obligation to provide
a safe workplace (and perhaps also believed that the facts and psychiatric diagnosis
of paranoia spoke for themselves).
UP NEXT: Watch this space for a discussion of a case where the employee claimed that the employer “regarded” the employee as disabled in violation of the ADA because it required the employee to go through a mental health IME.
MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination. You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, ping us at [email protected].