Schorr & Associates’ Employment Case of The Week ending January 29, 2016
By Alan Schorr
In re Williams, ___ N.J. Super. ___, 2016 N.J. Super. LEXIS 15 (App. Div., January 25, 2016)
In a case of first impression in New Jersey, the Appellate Division held that employers may not require an employee to undergo a psychological or physical fitness-for-duty examination unless the employer reasonably believes, 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.
Paul Williams was a truck driver for the Township of Lakewood Department of Public Works. For over eight years he performed his job satisfactorily. One day, the Township manager received an anonymous letter from a “concerned co-worker” which questioned Mr. Williams’ mental well-being. The letter, among other things, described Mr. Williams as a “time bomb waiting to explode.” The Township took no action whatsoever on the letter for over eight months, then suddenly sent a letter to Mr. Williams advising that he would be sent for a psychological fitness-for-duty examination, and that if he did not attend, he would face disciplinary action. They scheduled an examination and a follow-up.
Mr. Williams refused to attend the examination, citing the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. §12112(d)(4)(A). He argued that the examinations were “job-related and consistent with business necessity” and therefore the Township could not demand he undergo them. The Township then sought to remove him from his position for incompetency; inefficiency or failure to perform duties; inability to perform duties; conduct unbecoming a public employee; and "other sufficient cause" for discipline, based solely upon his refusal to attend the examinations.
The Departmental Hearing upheld the removal and the matter was then moved to the Office of Administrative Law. The Administrative Law Judge conducted a full contested hearing and reversed, finding that there was no evidence of psychologically-disruptive behavior and that Mr. Williams’ work performance was satisfactory. The ALJ ordered Williams reinstated with back pay. Lakewood then appealed to the Civil Service Commissioner, who reversed without ever even mentioning the ADA. The Commissioner simply ruled that Williams was ordered to take a fitness-for-duty exam and refused and therefore was insubordinate. Williams then appealed to the Appellate Division, which reversed in this published opinion.
The Appellate Division conducted a thorough analysis of the ADA, especially 42 U.S.C.A. §12112(d)(4)(A), which provides that employers may only require “medical examinations” if they are “job-related and consistent with business necessity”. The Appellate Division heavily relied upon the EEOC Enforcement Guidance in its decision. That is very important to employment practitioners because the EEOC has extensive guidelines which provide much detail and supplements the statutes and regulations. Many of these guidance reports are considerably broader then the statutes and regulation, so the Appellate Division’s approval of this guidance as a basis for its decision is very important.
Ultimately, the Court held that there was absolutely no job-related reason nor business necessity in ordering the fitness-for-duty examination. The Court reversed, remanded, and directed the agency to have Williams reinstated and determine the amount of back pay and attorney’s fees.
This is an important published case. The reliance upon the EEOC Guidelines as a source of authority has provided employees with important opportunities to establish discriminatory conduct by reference to these guidelines. While only Federal law was discussed in this case, I do not see why our court would not now recognize these guidelines as a source of authority, even where cases are brought under the Law Against Discrimination. The EEOC enforcement guidelines can be found here.
There are many cases where fitness-for-duty exams come into play. Most often, fitness-for-duty exams are ordered when an employee is returning from leave. In those cases it is likely that an employer will be able to demonstrate a business necessity and job-related necessity. This case provides valuable protection for employees in other, non-leave situations who wish to object to mandatory fitness-for-duty examinations.
Attorneys for employee/appellant: Kevin P. McGovern and David M. Bander, Mets Schiro & McGovern, LLP.
Attorney for respondent Township of Lakewood: Steven Secare.
Attorney for New Jersey Civil Service Commission: Pamela N. Ullman, Deputy Attorney General.
Appellate Judges: Ostrer, Haas (decision), and Manahan.