NJ Appellate Division: Employer Violated ADA by Ordering Fitness for Duty Examination
The New Jersey Appellate Division recently held that the Township of Lakewood violated the Americans with Disabilities Act (“ADA”) when it ordered an employee, Paul Williams, to undergo a psychological examination. Mr. Williams worked as a truck driver for the Township’s Department of Public Works (“DPW”), from 2004 to 2014. While Mr. Williams did not have a spotless record as an employee, according to the DPW director, he was “no different than any other employee.” In re Williams, 2016 N.J. Super. LEXIS 15, *5. (App.Div. 2016).
In late March 2013, the Township received a letter from an anonymous individual claiming to be a “[v]ery concerned employee at Lakewood Public Works.” The letter contained very serious allegations, and its author claimed to live in fear of Mr. Williams, who was a “time bomb waiting to explode.” Instead of contacting Mr. Williams’s supervisors to see whether there was any legitimate basis for the allegations contained in the letter, the Township waited more than eight months, and then notified Mr. Williams that he needed to appear for a psychological examination to determine his fitness for duty.
When Mr. Williams failed to appear for the initial examination or the follow-up appointment, the Township began proceedings to terminate him, and ultimately did terminate him. Mr. Williams appealed the termination to the Office of Administrative Law. The Administrative Law Judge reversed the termination, and ordered that Mr. Williams be reinstated and awarded back pay and attorney’s fees. The Civil Service Commission, however, held that Mr. Williams had been insubordinate in refusing to appear for the fitness for duty examination, imposed a suspension of six months, and ordered Mr. Williams to undergo and pass a fitness for duty examination prior to resuming his duties.
In reviewing this matter, the Appellate Division held that the Township “lacked the lawful authority” to order Mr. Williams to undergo a psychological fitness for duty examination. Id. at *10-11. The Court confirmed that the ADA bars employers from requiring medical examinations or asking employees about disabilities, “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Id. at *11. Under the ADA, to lawfully require a medical examination or inquire about an employee’s disability, an employer must have “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.” Id. at *11 (internal citation omitted).
The Court utilized the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act to interpret the ADA, and held that “the employer must reasonably believe, either through direct observation or through reliable information received from credible sources, that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat.” Id. at *15. The Township’s only evidence that Mr. Williams had a medical condition which affected his work performance or posed a direct threat was from an anonymous letter, which could not pass the five-factor test the EEOC has set forth as necessary to a determination of whether third-party information is reliable. Thus, the Court found that the Township had not shown that the examination was job-related and consistent with business necessity. As the Township violated the ADA in ordering Mr. Williams to undergo the fitness for duty examination, the Court held that Mr. Williams’s failure to undergo the examination could not be considered insubordination. The Court ordered Mr. Williams reinstated, and remanded for calculation of an award of back pay and consideration of Mr. Williams’s application for counsel fees.
Congress enacted the ADA in order to eliminate disability discrimination, and 42 U.S.C.A. § 12112(d)(1) specifically includes “medical examinations and inquiries” in its prohibition against discrimination. The Court here clearly analyzed and applied the language of the ADA to help eradicate disability discrimination.
By Jennifer Vorih, Esq. and Ty Hyderally, Esq.