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Handling Employees With Potential Disabilities

From time to time, employers call our office wondering what to do about an employee who previously was able to perform their job and now has a questionable ability to do so – but who has not requested an accommodation.  The protections of the ADA are typically triggered by the employee’s request for an accommodation.  However, from time to time, it can become apparent that an employee’s physical or mental well-being prevents them from fulfilling their job functions or creates a risk for themselves or others.

In the fall, the Sixth Circuit Court of Appeals, which covers Ohio, waded into the murky waters of the appropriate way to manage an employee who appeared to be mentally unfit for their job.  In Monroe v. Consumers Energy, Case No. 16-10079 (6th Cir. Oct. 19, 2017), the employee had worked for the Michigan gas company for 13 years, when supervisors noticed increasingly paranoid behaviors and complaints including a plethora of complaints that co-workers had installed recording devices on her cell phone, and in her cubicle, car, and home; being followed by her supervisor; and that tracking devices were installed in her keys and her car.  The employee even went as far as filing a police report against co-workers she believed had installed a surveillance device in her home.  The employer investigated the various complaints, and found them all to be without merit.  As part of the investigation, the employee also admitted to human resources that she was unable to focus at work.  The employee was then found crying at work by various individuals.

The company placed the employee on paid sick leave and sent her for a neuropsychological evaluation to determine if she was mentally able to perform the essential functions of her job.  The independent physician determined the employee would be able to perform her job, but only after engaging in at least 12 counseling sessions obtain coping skills.  The employee refused to attend counseling, but was permitted to remain on paid sick leave. Some months later, the employee requested to come back to work and claimed she was much improved despite not having engaged in the counseling. The employer sent her for reevaluation with the same physician, who agreed she was improved, but opined she still needed counseling before she could return to work.  The employee filed a charge with the EEOC, claiming disability discrimination.  The charge was found to be without merit.  The employee then engaged in counseling and returned to work – now nearly 2 years after she was initially placed on leave.

Shortly after returning to work, the employee filed a lawsuit against the employer claiming it violated the ADA.  The employee did not claim she was disabled, but rather that the employer regarded her as disabled and discriminated against her because of a perceived disability.  The trial court entered summary judgment in favor of the employer.  The employee then appealed to the Court of Appeals.

The Court of Appeals upheld prior rulings related to an employer’s right to seek the opinion of a doctor, even through examination, when it has reason to believe the employee is not able to perform their job functions.  The Court held that simply requiring an employee to undergo such an examination is not proof in itself that the employer regards the employee as having a disability.  The Court upheld the lower court’s order in favor of the employer, finding the company’s actions reasonable and lawful.

While the Consumers Energy employer clearly went out of its way to accommodate its employee (including granting her 2 years’ leave) it gives employers some guidance on how to manage employees who have physically, cognitively, or mentally declined to a degree that they are unable to perform their essential job duties.   In some instances and under some circumstances, employers do not have to wait until the employee requests an accommodation to determine their continuing fitness for work.  However, in any case, an employer-ordered examination must be job-related and consistent with business necessity, and should be used as a means of last resort.

If you have questions about use of medical examinations, or about managing an employee with an acknowledged or potential disability, call a lawyer in our Labor & Employment Law Practice at (419) 244-6788.

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