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Your Employee Matters


By November 1, 2010No Comments

Medical Examinations. Requiring an employee to undergo a fitness for duty examination (FFDE) does not violate the Americans with Disabilities Act, if the employer has an objective, legitimate basis to doubt the employee’s ability to perform his or her duties. Under the ADA, an employer may require an employee to undergo medical testing only where the testing is job related and consistent with business necessity. In Brownfield v. City of Yakima, a police officer argued that the City violated the ADA by requiring an FFDE, after he had engaged in a number of emotional outbursts, without showing that his job performance had actually suffered due to any health problems. The Court disagreed, finding that requiring a “preemptive” medical examination may be permissible under the ADA. It cautioned, however, that the standard for establishing the validity of such a requirement is quite high – the employee’s behavior cannot be “merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.”

The court ruled that The City of Yakima had a legitimate basis to doubt the plaintiff’s ability to perform the duties of a police officer. In coming to its conclusion, it used these words, which everyone should remember:

“We agree … that prophylactic psychological examinations can sometimes satisfy the business necessity standard, particularly when the employee is engaged in dangerous work. However, we must be keen to guard against the potential for employer abuse of such exams … Employers are prohibited from using medical exams as a pretext to harass employees or to fish for non-work-related issues and the attendant ‘unwanted exposure of the employee’s disability’ and the stigma it may carry … An employee’s behavior cannot be merely annoying or ineffective to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.”

This case reassures employers that sending an employee for a fitness for duty examination will not violate the ADA if the employer has a reasonable belief that the employee is not capable of performing his job. Of course, the ADA’s requirement that a medical examination be consistent with business necessity is an objective one and the employer bears the burden of demonstrating this business necessity.

Religious Accommodation. The U.S. Court of Appeals for the Third Circuit held that a prison that prohibited female Muslim employees from wearing religious head coverings called khimars did not violate Title VII’s religious accommodation obligations. Under Title VII, an employer must provide accommodation for an employee’s religious beliefs and needs unless the accommodation would pose an undue burden to the employer. In EEOC v. The GEO Group, Inc., the Court credited the employer’s identified safety and security risks associated with the wearing of head coverings in prison: Smuggling of contraband, interference with identification of the wearer, and the potential use of the head covering as a strangulation weapon. This case demonstrates that an employer’s position in refusing a religious accommodation is stronger where significant safety concerns exist.

NLRB Decisions. The Supreme Court ruled that the National Labor Relations Board was not authorized to issue decisions during the more than two years that three of its five seats were vacant. The NLRB has compiled a list of the 595 decisions issued by the two-member Board. Most of the cases were already closed under the Board processes or are at some point in compliance proceedings; the remaining open cases were returned to the Board for reconsideration by at least three members. The Board has just begun to issue rulings on those cases.

Courtesy of Shaw Rosenthal (