ADA - Employee Mental Health - Employer Right

By Lehr Middlebrooks Vreeland & Thompson, P.C.

January 26, 2018

Concerns about workplace violence, bullying, and harassment sometimes result in employers facing a difficult choice, which is either to require a mental health fitness for duty examination or wait to see if the concerns about the employee prove to be accurate. No employer has an obligation to retain an employee whose behavior creates a potential risk of harm to the employee or others.

An employer has the right under the ADA to require an employee fitness for duty examination, including for mental health, where the exam is "job-related and consistent with business necessity." "Preventing employees from endangering their co-workers is a business necessity," ruled the Seventh Circuit Court of Appeals in the case of Painter v. Illinois Department of Transportation (Dec. 6, 2017). Furthermore, "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."

Deanna Painter worked for the Illinois Department of Transportation where she was required to undergo several fitness for duty tests based upon co-worker concerns about her behavior. She was argumentative, spoke to co-workers in a loud unprofessional tone, and kept a detailed journal of her co-workers' conversations and actions. Employees overall were "fearful of Deanna." Painter's behavior toward other employees was "brash, condescending, intimidating, and accusatory..." She also exhibited hostile body language text here.

Throughout her employment, Painter had been periodically required to submit to fitness for duty examinations because of her hostile and paranoid behavior. Four previous examinations had resulted in determinations that Painter was ultimately fit to return to work. However, in the Spring of 2012, while on paid administrative leave for hostility to co-workers, Painter emailed her union representative that a clock's displaying 4:30 when it was just 4:00 "told me everything I need to know." When the union representative responded that he thought the clock was just dead, Painter responded with what the representative took as a death threat: "Something's dead alright..." The psychiatrist conducting Painter's exam concluded that Painter was unfit for work because of her "paranoid thinking and highly disruptive behavior which results in her paranoia."

Painter sued claiming that the employer's requirement that she submit to a fitness for duty examination violated the ADA. The court concluded that the District Court got it right when it granted summary judgment in favor of the employer: an employer is simply not required to take the risk of employee behavior due to mental health as a form of accommodation under the ADA. "There must be a genuine reason to doubt whether the employee can perform job-related functions." In this case, the evidence submitted from different employees (and Painter's union representative) fully supported the employer's right to require a fitness for duty examination and ultimately not to return Painter to work.

Approximately 20% of American adults have some form of a mental health condition and 56% of those do not have access to mental health care. Thus, an employee may not even realize that she or he has a mental health disorder which requires treatment. An employer has the right to be proactive in requiring an assessment, making sure that the employee does not pose a risk of harm to the employee or to others and then determine whether the individual should return to work. With heightened concerns about workplace violence, harassment, bullying, and hostility, employers have to balance the risk of an ADA lawsuit against the risk of a potential violent or other disruptive outcome in the workplace. When there is genuine concern for violence or ongoing disruption, employers should act to protect other workers, customers, clients, and visitors. Don't hesitate to contact your employment counsel to evaluate the best action to take.