Employer May Require Employee to Undergo Mental Fitness for Duty Exam if Employee Exhibits Concerning Behavior

Q: One of our employees has been exhibiting strange, erratic behavior at work. Can we require the employee to submit to a mental health examination?

A: Possibly. The ADA prohibits employers from requiring their workers to undergo medical exams unless the exam is “shown to be job-related and consistent with business necessity.”  However, an employer may require an employee to undergo a mental health examination if the employee’s behavior raises questions about the employee’s ability to perform essential job-related functions or raises a safety concern.

The Seventh Circuit (which has federal jurisdiction over the States of Illinois, Wisconsin and Indiana) recently affirmed a district court’s decision rejecting a plaintiff’s claim for disability discrimination when her employer required her to undergo several mental health examinations in response to her behavior. In Painter v. Illinois Department of Transportation, No. 16-3187 (7th Cir. Dec. 6, 2017), the company placed the plaintiff on administrative leave and required her to undergo a fitness for duty exam after she had several outbursts aimed at coworkers and habitually walked around the office talking to herself.  Many employees expressed fear that the plaintiff would become physically violent, did not want to be alone with the plaintiff in the office, and believed that the plaintiff was spying on them at work.  After two exams by a doctor and one exam by a psychologist, the plaintiff returned to work and was transferred to another division.

In her new division, the employer continued to receive reports from co-workers complaining of incidents with the plaintiff.  The plaintiff kept a detailed written log of her co-workers’ actions and conversations, purportedly in order to determine why she was put on leave.  The plaintiff also sent her supervisor numerous nonsensical emails, often during the evening and in the middle of the night.  The plaintiff was again placed on administrative leave and underwent two additional fitness for duty exams.  The doctor found that the plaintiff exhibited signs of a personality disorder, but deemed her fit to return to work.  This pattern repeated a few additional times until the plaintiff ultimately was found by a psychiatrist to be unfit for duty.  She then sued.

The Seventh Circuit noted that employers bear a high burden of establishing that compelled medical examinations are consistent with business necessity. Nonetheless, in this case, the court held that the employer had established it had a reasonable belief based on objective evidence that the plaintiff may have had a medical condition that impaired her ability to perform essential job functions, and that the medical condition could cause the plaintiff to pose a safety threat.  The court noted that, prior to each leave and exam, multiple employees raised concerns about the plaintiff’s behavior in the workplace, and a number of employees felt unsafe around the plaintiff.  Each leave and exam was based on new incidents of behavior, and in general, on more than person’s complaints.  The court therefore concluded that inquiries—even multiple inquiries—concerning a worker’s psychiatric health may be permissible if they reflect concern for the safety of other employees and the public at large.

The Seventh Circuit’s decision is consistent with EEOC guidance, which states that an employer may require an employee to undergo a medical examination if the employer has a reasonable belief, based on objective evidence, that a medical condition will impair the employee’s ability to perform essential job functions, or that the employee will pose a threat due to a medical condition.

When assessing whether to have an employee undergo a fitness for duty exam based on unusual behaviors, it is important for employers to keep in mind that there must be a genuine reason to doubt whether the employee can perform job-related functions, or there must be a genuine safety concern. Behavior that simply is annoying or inefficient does not rise to that level.

Jessica X.Y. Rothenberg

U.S. Department of Labor Endorses More Flexible Unpaid Intern Test

Q.  Our company wants to establish an internship program and host student interns to work alongside our employees. Do we need to pay the interns?

A.  Possibly. Over the past few years, courts and the Department of Labor (“DOL”) have carefully examined the relationship between businesses and unpaid student interns to determine whether students working at a company are more properly classified as unpaid interns or employees protected by the Fair Labor Standards Act (“FLSA”).  Under the FLSA, if an individual is deemed a non-exempt employee, that employee must be paid at least a minimum of $7.25 per hour and one and a half times their regular rate of pay for all hours worked in excess of 40 in a workweek.  The minimum wage is higher in many states, including New York and New Jersey.

Previously, the Department of Labor required employers to meet a six-part test to prove that an individual was properly classified as an unpaid intern. One of the benchmarks employers were required to prove under the prior test was that the employer providing the internship opportunity “derives no immediate advantage from the activities of the intern . . . and on occasion its operations may actually be impeded.”

Citing four separate appellate court rulings that had rejected DOL’s six-part test, the DOL recently announced that it would use a more flexible “primary beneficiary” test in order to determine the “economic reality” of whether an individual is an intern or an employee. Going forward, the DOL will consider the following seven factors to determine whether an individual is an intern:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

No single factor described above is determinative and DOL cautions that whether an individual is properly classified as an unpaid intern will depend on the unique facts of any particular case.  Employers should also be aware that some states have their own test for determining whether an intern must be paid. For example, the New York Department of Labor lists eleven separate factors relevant to determining whether an unpaid intern should be considered an employee under New York law.

Before establishing an internship program or allowing a student to intern at a business, companies should examine the “economic reality” of their relationship with interns, review the new DOL Fact Sheet on interns, and consult with a qualified employment lawyer to ensure that the internship program complies with both federal and state wage and hour laws.

Lee E. Tankle

Job Ads Distributed to Younger Recruits May Be Discriminatory

Q.  My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?

A.  In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.

The Age Discrimination in Employment Act (ADEA) states that, generally, it is unlawful for employment notices or advertisements to include age preferences, limitations, or specifications.  Thus, advertisements that state that the company is seeking applicants who are “age 25 to 35” or “recent college graduates,” for example, violate the ADEA. Employers also may not base hiring decisions on stereotypes about a person because of his or her age.  Likewise, an employer may not use an employment test that excludes older applicants unless the test is based on reasonable factors other than age.

But, what if, instead of soliciting a certain age group in the text of the advertisement, the company uses technology, such as micro-targeting, to limit the population receiving the job ad? In a recent class action case filed in Northern California, a group of plaintiffs claimed that such a practice also violated ADEA. The plaintiffs sued several large companies and a defendant class of “hundreds of major American employers and employment agencies,” claiming that the companies used Facebook’s ad platform to routinely exclude older workers from receiving their recruiting ads on Facebook, “thus denying older workers job opportunities.”  The lawsuit seeks to certify a class of older applicants who were excluded from receiving employment ads, and seeks injunctive and monetary relief for what it calls a pattern and practice of age discrimination.

The class action is in the early stages, and it will be interesting to see whether the court agrees with plaintiffs’ argument that using technology to limit the pool of applicants to certain age groups is discriminatory.  In the meantime, employers should take heed and avoid targeting younger recruits, both on the face of the job ads and by limiting the population receiving them, absent a bona fide occupational reason to do so.

–Tracey E. Diamond