Here’s a tricky scenario for any business owner: You have reason to believe that an employee, who has suddenly started showing increasingly erratic behavior, is struggling to do her job and negatively impacting her co-workers. What can you do?
Can you require that worker to undergo an independent medical exam before returning to work?
Monroe v. Consumer’s Energy tested the legality of such a move. In this case, the long-time employee, Ms. Monroe, suddenly began having trouble focusing and concentrating at work and stopped interacting with her co-workers. She then began accusing those co-workers of tracking her — via a GPS on her car — and doing surveillance by placing listening devices in the office that intercepted her text messages.
For its part, the company investigated these allegations but didn’t find any evidence to warrant them valid. The company then asked Monroe to undergo an independent medical exam (IME) to determine if she was capable of performing the essential functions of her job. Eventually, she was placed on leave until the IME was completed.
Monroe did undergo the IME eventually, which revealed “indications of a high degree of interpersonal sensitivity, tendency toward paranoid thinking and difficulty in interpersonal relationships. This examinee is likely to appear guarded and suspicious of others …”
The doctor recommended 12 counseling sessions and a reevaluation before Monroe could return to work. Although she eventually agreed to these demands voluntarily, she first filed an EEOC charge against her employer, claiming the mandatory IME effectively regarded her as being disabled under the ADA.
What ADA says, doesn’t say
In its ruling, the court tackled the “regarded as” disabled claim and applied it to Monroe’s situation to determine if the IME was for invalid reasons.
Under the ADA, an employee is “regarded as” being disabled:
“if the individual establishes that he or she has been [discriminated against] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
The court pointed out that when an employer sees health issues that may be adversely affecting a worker’s job performance, it doesn’t necessarily mean the employer has regarded that worker as disabled. In fact, a request for a medical exam “is not evidence of discrimination because it ‘does not prove the employer perceives the employees to have an impairment that substantially limits one or more of the employee’s major life activities.’”
In this case, the court said:
“Monroe’s unusual behavior, including the nature of allegations against her co-workers in her internal complaint, coupled with performance issues would have caused any reasonable employer to inquire as to whether she was still capable of effectively doing her job … Consumers Energy had a reasonable basis for referring Monroe for an IME to evaluate whether her actions could have been undermining her ability to effectively do her job. Because Monroe cannot show that her IME referral was done for invalid reasons, she cannot establish that it was an adverse employment action or was discriminatory …”
Key takeway for employers: The ADA specifically states that you can require a medical exam that is job-related and consistent with business necessity and, as this case shows, if you notice the employee’s personal issues are affecting that person or their co-workers, you can require the exam as a condition of returning to work.