On January 26, 2016, the NJ Appellate Division published IN THE MATTER OF PAUL WILLIAMS, a precedent-setting case that struck a blow for workers’ rights to be free from mandatory and unnecessary medical and psychiatric “fitness for duty” testing.  For many years, employers have gotten away with using written and unwritten “fitness for duty” policies to discriminate against public and private sector workers, including wrongful termination.  This case is important, instructive, and deserves public attention.

The Facts

In 2013, The Town Manager of Lakewood, NJ, received an anonymous letter from someone purporting to be a “very concerned employee” in the town.  The unsigned letter warned the Township that Williams was prone to tirades and outbursts; fellow workers were afraid of Williams and deserved a hostility free workplace; no one was paying attention to their complaints; Williams was an emotional “time bomb”; he needed professional help; and the Township should not put fear of possible liability (i.e., a complaint by Williams) ahead of employee safety.

In response to the letter, Township management took no action at all.  However, 8 months later, the Township advised Williams he had to take a psychological fitness-for-duty exam, failing which he would face disciplinary action.

A week or so later, the Township directed Williams to two specific exams by a specific provider on dates and at times certain, reminding him that failure to attend would be actionable.

Williams advised the Township the requested exam was neither job related nor business required, and that it violated the Americans With Disabilities Act because it was merely a pretext for discrimination against him.  He refused to attend either exam.

In response the Township served Williams with a Preliminary Notice seeking his removal from employment due to incompetency, inefficiency or failure to perform his job, inability to perform his job, conduct unbecoming, and alleged “other  sufficient cause” for discipline, based on his failure to report for the fitness-for-duty exams and in direct violation of his supervisors’ instructions.

Williams demanded a Township departmental hearing, which was held in early 2014. The Township upheld its own decision and issued a Final Notice firing him.  Williams appealed to the NJ Civil Service Commission, which sent the matter to the NJ Office of Administrative Law for a contested hearing.  The testimony and proofs at hearing showed that Williams had performed his job well, despite being “at times confrontational”.  No one was afraid of him.  No formal discipline had ever been taken against him in 11 years of his service.  No one had investigated the charges in the anonymous letter.  No other employee had ever been sent for psychological testing on the basis of Williams’s work record.  The ALJ found that the Township’s fitness for duty demand was unrelated to Williams’s job performance, unrelated to any specific claim of his disruptive conduct, and not based upon business necessity.

The Administrative Law Judge’s Initial Decision recommended Williams’s reinstatement, with full back pay, plus counsel fees and costs of his litigation, all of which the Township refused.  Instead, it appealed to the Civil Service Commission, which reversed the Administrative Law Judge’s decision, and instead found good cause for Williams’s psychological fitness for duty evaluation, that he was insubordinate for refusing that evaluation.  They imposed a 6-month suspension, but required Williams to submit to psychological testing as precondition for his reinstatement.  They also denied his request for attorneys’ fees.

In reversing the NJ Civil Service Commission and reinstating the ALJ’s determination, the Appellate Division expressly relied upon the federal EEOC’s Enforcement Guidance for fitness for duty examinations, which it found instructive if not binding.

In its Enforcement Guidance,            the EEOC explained that, prior to the enactment of the Americans with Disabilities Act (ADA), “many employers asked . . . employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities — particularly nonvisible disabilities, such as mental illness — despite their ability to perform the job.” (Emphasis added).  Thus, “[t]he ADA’s provisions concerning . . . mental examinations reflect Congress’s intent to protect the rights of . . . employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs.”

Psychological fitness-for-duty examinations are “medical examinations” under the ADA. The  Township-ordered exams would only have been lawful if they were “job-related and consistent with business necessity” in situations when employers would meet the general standard for . . . requiring a medical examination, as follows:

“Generally, a disability-related inquiry or medical examination of an employee may be ‘job-related and consistent with business necessity’ 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.’”

Legal Analysis

After reviewing the facts and the law as applied to the Williams case, the Appellate Division concluded that a NJ employer may only require an employee to undergo a psychological fitness-for-duty examination when the employer has a reasonable belief, either through direct observation or through reliable information from credible sources, that the employee’s perceived mental state will either affect his or her ability to perform essential job functions or that the employee poses a direct threat. The court held that such a belief requires an assessment of the employee and his/her position and cannot be based on general assumptions.

The court held that the Township violated the ADA when it ordered Williams to take a fitness-for-duty examination based upon the information contained in the anonymous letter. Simply stated, the Township did not meet its burden of demonstrating that its directive was “job-related and consistent with business necessity.”

The Township also failed to prove that Williams posed a direct threat to either himself, others or property. It presented no evidence that Williams had threatened other employees.

In addition, the Township obviously did not consider appellant to be a direct threat to other employees or property because, after it received the anonymous letter, it failed to take any action concerning it for over eight months. During that entire time, appellant performed the duties of his position without incident.

The anonymous letter, said the court, did not represent the type of reliable information from a credible source upon which the Township could reasonably rely to order 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 had advised employers is insufficient to support a mandatory evaluation.

The court said the Township had the ability, based on the anonymous letter, to “make inquiries into the ability of an employee to perform job-related functions.” Thus, the Township could have solicited information from the DPW director and any other supervisors concerning appellant’s job performance. The Township also could have contacted the three “union stewards” specifically named in the anonymous letter for information about the alleged “outburst” appellant had on March 28, 2013. Instead, the Township failed to investigate the allegations in the anonymous letter for over eight months and then sought to rely upon that letter as the sole basis for its order requiring Williams to submit to the psychological evaluation, all in violation of the ADA.

Accordingly, the court held the NJ Civil Service Commission’s finding of insubordination, given the undisputed circumstances presented, was plainly incorrect and could not stand.  The directive was unlawful, and Williams’s disobeying it could not be grounds for his dismissal.

On that basis, the Appellate Division reversed the matter and sent it back to the Civil Service Commission for a calculation of back pay upon Williams’s reinstatement, plus counsel fees and costs, to be determined by the Commission.

CONCLUSION

Employment law disputes, like the Williams case, are complex and emotionally charged.  They require the assistance of experienced legal counsel to negotiate, mediate, arbitrate, and/or litigate, including on appeal if necessary.  If you are in an employment dispute, please call or write us today.  Our law firm will review the facts with you, research the applicable law, and give you an opinion and recommendations as to your best course of action. Do not take these matters lightly, or seek to handle them by yourself.  If you entrust us with your legal matter, we will do our very best to help you achieve results that are just and reasonable for you.