Ninth Circuit Approves of "Preemptive" Fitness for Duty Examination
Yesterday the Ninth Circuit Court of Appeals issued a decision approving of an employer's use of a "preemptive" fitness for duty examination for an employee who exhibited bizarre and erratic behavior in the workplace, even though that behavior had not yet impacted his job performance. Click here to read the full opinion in Brownfield v. City of Yakima.
In Brownfield, a police officer was ordered to undergo a fitness for duty examination after he displayed several strange behaviors in and out of the workplace: swearing at and arguing with another officer, becoming upset after a child teased him during a traffic stop, domestic violence at home, and making vague suicidal comments . The City required Brownfield to undergo a fitness for duty examinations to determine whether he could perform police duties. When Brownfield refused, the City terminated him. Brownfield sued, alleging the City violated the Americans with Disabilities Act ("ADA") by unlawfully requiring a fitness for duty examination.
The Ninth Circuit held that the City did not violate the ADA by requiring the fitness for duty examination. Under the ADA, an employer may not require a fitness for duty examination "unless such examination ... is shown to be job-related and consistent with business necessity." The Ninth Circuit rejected Brownfield's argument that the examination could not be job-related unless the City showed Brownfield's job performance was affected by his behavior. Rather, the court held that a "propyhlacitc psychological examination" following an employee's erratic behavior may be job-related and satisfy the business necessity standard even though job performance is not impacted.
When can an employer order an employee who is behaving erratically to undergo a fitness for duty examination? In Brownfield, the Ninth Circuit adopted a "reasonable person" standard: the employer can order the examination when faced with "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job." The court also warned against overuse of such examinations, however: "an employee's behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions."
Brownfield will give employers in the Ninth Circuit greater leeway in addressing an employee's erratic behavior. Before ordering such an examination, however, employers should consider whether the behavior could raise a serious question of whether the employee can still perform the essential functions of his job. Overuse of such examinations could lead to meritorious discrimination claims.
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