August 31, 2010

ADA and Fitness for Duty Exams: No Fear

Today we examine an interesting case where the ADA runs up against OSHA's general duty clause, where the individual's right to "reasonable accommodation" collides with the need to ensure the safety of the general public.

In 1999 Oscar Brownfield became a policemen in Yakima, Washington. By all accounts, he was a good cop. In 2000 he suffered a head injury in a non-work-related car accident. He returned to work about 6 months later. In 2005 the troubles began: he (wrongfully) accused a co-worker of malfeasance. He was short-tempered, storming out of a disciplinary hearing with a superior. He described moments of intense anxiety when he was not sure he could control himself. And he made alarming comments about how meaningless life had become.

Fearful of Brownfield's mental state, his employer sent him for a Fitness for Duty Exam (FFDE). He was diagnosed with a mood disorder and disabled from work due to his "emotional volatility, poor judgment and irritibility." The disability was considered permanent.

Then Brownfield had another auto accident. His treating physician, Dr. Gondo, released him for work: that is, he wrote that Brownfield could carry out the "physical requirements" of the job. When pressed on the issue of Brownfield's mental state, Dr. Gondo did not back down, but he did not respond either. He simply remained silent. As a result, the Yakima police department sent Brownfield for a second FFDE, with the same result as the first. Brownfield was terminated from his job.

Claiming an ADA disability (he does appear eligible), Brownfield sued for a violation of the ADA, violation of his first amendment rights of free speech (his apparently groundless accusations against a fellow cop) and violation of the FMLA (which limits the ability of employers to require multiple FFDEs). Brownfield's case was dismissed on summary judgment by the district court, a decision subsequently upheld by the 9th circuit court of appeals.

A Tool in the Toolbox
Employers often balk at requiring Fitness for Duty exams. They fear a violation of the employee's rights. This case clearly indicates that those rights can and should be tempered by a clear-headed vision of business necessity. If the employee's mental or physical condition undermines his ability to perform essential job functions safely, a fitness for duty exam is not only allowable, it is necessary. To be sure, the exam comes with a high standard: the need must be work related and it must derive from business necessity. But where these standards are met, employers must act. If the employer takes the path of least resistance and does nothing, they could easily be charged with negligent retention when and if something bad happens.

Management continuously walks a fine line between employee rights and the obligation to operate a safe workplace. Yakima took a chance in terminating Brownfield's employment, but it appears that they did what had to be done and they did it legally. Brownfield was unable to perform his job safely. His mental state comprised a risk to himself and to the public he was oath-bound to protect. It is never easy confronting an unruly, agitated and volatile employee, but it must be done - and done in a timely manner.

| 2 Comments

2 Comments

Thanks for a great article. I certainly agree with you, but would like to add a caveat: I strongly advise employers to seek advice from counsel or their broker before utilizing the FFDE. I saw one utilized a few months ago that was being used improperly and had the potential to land an employer in hot water with the ADA.

FFDE's have been documented as a tool by some unscrupulous police administrators as retaliation against good cops who uncover corruption, stand up for their rights, file legitimate but embarassing lawsuits or testify truthfully in an attempt to tarnish their character in the eyes of the public - or a jury.
In this case it appears it was used wisely. Nice job on this article.

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This page contains a single entry by Jon Coppelman published on August 31, 2010 1:36 PM.

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