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New Jersey Court Finds Employer Improperly Required Employee to Submit to Fitness-for-Duty Exam

Authors: Richard C. Mariani (Morristown), Evan J. Shenkman (Morristown)

Published Date: March 1, 2016

The Superior Court of New Jersey, Appellate Division recently held, in a case of first impression, that the Americans with Disabilities Act (ADA) permits a New Jersey employer to require an employee to undergo a fitness-for-duty examination in limited circumstances. Quoting an Equal Employment Opportunity Commission Enforcement Guidance, the court found that fitness-for-duty examinations are permissible only when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” In the Matter of Paul Williams, Township of Lakewood, No. A-0341-15T2 (January 25, 2016)

The court further ruled that in order to meet this standard, an employer’s belief that an employee’s perceived medical condition affects the employee’s work performance or that the employee poses a direct threat must be based upon either “direct observation or through reliable information received from credible sources.” The court applied that standard to hold that the Township of Lakewood violated the ADA by requiring the employee to undergo a psychological fitness-for-duty examination though it lacked a reasonable belief, based on objective evidence, that his perceived medical condition would affect his work performance or that he posed a direct threat. Instead, the Township’s main basis for requiring the employee to undergo a mental examination, the court found, was an anonymous letter received by the employer about him (stating that he had “some sort of mental issues,” and that employees were “afraid of this man”). The court had also noted that the Township did not conduct an investigation to corroborate the claim of mental instability set forth in the letter.

Richard C. Mariani  (Morristown)

Richard C. Mariani

Rich Mariani has extensive experience representing management in employment discrimination, disability accommodation and wrongful discharge matters before state and federal trial and appellate courts and administrative agencies. He also counsels clients on all employment-related legal issues, conducts internal corporate investigations, designs effective personnel policies, and conducts on-site training programs for management and non-management personnel on legal issues affecting the workplace.


Evan J. Shenkman  (Morristown)

Evan J. Shenkman
Evan J. Shenkman is a member of Ogletree Deakins’ Knowledge Management Department, serving as the firm’s Director of Knowledge Management Counsel and Research. In his role, Mr. Shenkman is responsible creating processes, practices, and software to allow firm attorneys to work smarter, faster, and more in sync; creating internal and client-facing collaborative tools; and managing the firm's team of Knowledge Management Counsel and the firm's Legal Researchers. He also manages...