If an employee is acting abnormally or exhibiting signs of mental impairment, can an employer require the employee to take a fitness-for-duty examination? Tim Garrett of Bass Berry & Sims recently addressed that question in a recent blog post. Here are some of his tips, based on recent case law:
Don’t rely on anonymous sources: Garrett points to a case out of New Jersey in which a judge sided with an employee who had been terminated after refusing to undertake an examination. The employer had demanded the examination 8 months after receiving an anonymous letter that raised questions about the employee at issue’s mental health. The judge ruled that the employer had a duty to further investigate the letter’s contents before demanding the evaluation.
Listen to co-workers: The U.S. Court of Appeals for the Sixth Circuit recently sided with an employer who had demanded a fitness-for-duty exam after an employee’s co-workers raised concerns. According to co-workers, she was unable to concentrate and thus was failing at routine tasks, and that she had made concerning comments about wanting to put a gun to her head. In this situation, the court gave the employer the okay to demand she submit to the evaluation.
Consider leave: When investigating complaints or concerns about an employee’s mental health, it may be appropriate to put him or her on leave. Garrett says this depends on the seriousness of the evidence or threat, but suggests that any leave should be with pay.
This article was published in Corporate Counsel and linked to an authored blog by Tim Garrett.
