The Americans with Disabilities Act allows an employer to require an employee to undergo a Fitness For Duty Examination (FFDE) when health problems have had a substantial or injurious impact on an employee’s job performance. Such examination must be job-related and consistent with business necessity. The 9th U.S. Circuit Court of Appeals has held – as an issue of first impression for that Court – that an employer also can require an employee to undergo such exam as a “preemptive” measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work. Brownfield v. City of Yakima, 9th Circ., No. 09-35628, July 27, 2010.
Oscar Brownfield began working as a police officer for the Yakima Police Department (YPD) in Yakima, Washington, in 1999. In 2000, he suffered a closed head injury in an off-duty car accident, which caused symptoms that included reduced self-awareness. He returned to work and, over the following three years, received positive performance reviews and several commendations.
In 2004, Brownfield began to complain to his supervisor about another officer, Officer Dejournette, alleging various “shortcomings” on Dejournette’s part, and began to document those perceived failings. In May 2005, after he was reprimanded for a performance issue, Brownfield forwarded his notes to the Chief, Sam Granato. During a subsequent meeting among Brownfield and two of his supervisors, Brownfield used profane language, and left the meeting after being asked to stay. Brownfield was temporarily suspended for insubordination after that incident.
In September 2005, four additional incidents occurred involving Brownfield. First, he engaged in a “disruptive argument” with another officer; second, Brownfield himself reported that he felt himself “losing control” during a traffic stop when a young child was “taunting him” during the stop; third, YPD received a domestic violence call from Brownfield’s estranged wife after Brownfield allegedly stuck her by closing a door on her; and fourth, a YPD officer reported several statements made by Brownfield including a statement that “It doesn’t matter how this all ends.” Those incidents, taken together with the May incident, led the YPD to send Brownfield for an FFDE.
The diagnosis offered by Dr. Decker, who conducted the FFDE in October 2005, was Mood Disorder which manifested itself in “poor judgment, emotional volatility, and irritability,” and was related to Brownfield’s 2000 head injury. Dr. Decker determined that Brownfield was unfit for police duty and was permanently disabled by the condition.
Brownfield subsequently got a second opinion from Dr. Mar, who agreed with Decker that Brownfield was unfit for duty, but believed that Brownfield’s condition might improve with treatment. In December 2006, Mar reported that Brownfield was improving and could return to duty, but at an unspecified date. YPD scheduled another FFDE, this time with Dr. Ekemo (Brownfield refused to return to Decker). Although Brownfield attended an initial session with Ekemo, he refused to return to complete the evaluation, and his employment ultimately was terminated.
Brownfield sued in federal court alleging, among other claims, that the YPD had violated the ADA by requiring him to submit to the FFDE. The district court granted summary judgment in favor of the City, and Brownfield appealed. The lower court’s dismissal was upheld by the Ninth Circuit.
The Ninth Circuit found that the ADA’s directive that a medical exam be “job-related and consistent with business necessity” was quite high, but that the ADA does not require an employer to wait until a perceived threat becomes real or to allow questionable behavior to result in injuries before sending an employee for an FFDE, particularly when the employee is engaged in dangerous work. In interpreting “business necessity,” the Court cautioned that it should not be confused with mere expediency, and that using medical exams to harass employees or to “fish” for non-work-related medical issues could, in fact, violate the ADA. The behavior that triggers such FFDEs cannot be merely annoying; rather, there must be some objective reason to doubt whether the employee can perform his or her job-related functions.
Because the employer bears the burden of demonstrating a job-related reason for an FFDE, employers should understand the relevance and the parameters of the concept of “business necessity,” especially when used as a basis for a preemptory FFDE. Clear, concise, and objective documentation of the incidents that form the basis of the reason for that exam can help to avoid, or to effectively defend against, an employee’s claims under the ADA.
