On how many occasions have you found yourself asking whether you can lawfully send an employee for a fitness for duty evaluation? At one time or another you may have been faced with an employee whose ability to perform their job is questioned. Sometimes these situations are clear: the employee is actually failing to perform his or her job duties and you have cause to believe they are not fit for duty. However, what about situations where an employee is performing the functions and duties of their job, but is acting out behaviorally in a way that is stressful and disruptful to a department or unit? Can that employee be sent for a fitness for duty evaluation even though they are competently performing their actual job duties?
In Brownfield v. City of Yakima, 612 F. 3d 1140 (9th Cir. 2010), Brownfield, a Yakima police officer, was performing his duties as a peace officer, but his communications with his supervisors were overly emotional on about five occasions. For example, he used an expletive and he walked out of a meeting with two of his supervisors. On another occasion, Brownfield swore at a supervisor and told him to leave the room when he was talking with another officer. As a result of this behavior, the City ordered Brownfield to undergo a fitness for duty examination. The doctor diagnosed Brownfield with a permanent mood disorder and concluded that he was unfit for police duty. The City terminated Brownfield on the ground that he was unfit for duty.
Brownfield sued the City and claimed that the termination violated the Americans with Disabilities Act (“ADA”) on the ground that under the ADA an employer cannot require a medical examination to determine whether an employee is disabled unless the examination is job-related and consistent with business necessity. Here, there was no decline in work performance by Brownfield, so he argued that the business necessity requirement was not satisfied. However, the Ninth Circuit U.S. Court Appeals found that, although the business necessity standard is high, it could be met absent a decline in work performance if there is substantial evidence that could cause a reasonable person to inquire whether an employee is still capable of performing the job. Here, the court concluded that the City had a legitimate basis to doubt Brownfield’s ability to perform his job duties based on his emotionally volatile behavior with supervisors on numerous occasions. Note that the court considered Brownfield’s job as a police officer a significant factor in its decision because of the amount of stress and danger associated with the work of peace officers. As such, this case should be applied narrowly.
Generally, evidence that an employee’s work performance is declining indicates that a fitness for duty examination is justified. Fitness for duty examinations must be job-related and consistent with business necessity. Evidence showing that an employee is not performing their job duties will help an agency argue that business necessity requires the examination. Employers should document the performance and behavioral issues of employees so that the support for a fitness for duty evaluation is at the employers’ fingertips if the situation becomes serious enough.