Keywords: medical examinations, business necessity
Summary: Section 12112(d)(4)(A) of the Americans with Disabilities Act (ADA) prohibits medical examinations of employees unless the examination is shown to be job related and consistent with business necessity. This case calls into question a “fitness-for-duty” test that was administered to an employee because of concern over his mental state.
Plaintiff, Franklin Owusu-Ansah ("Owusu-Ansah"), began working for Defendant Coca-Cola Co. ("Coca-Cola") in 1999. By 2005, Mr. Owusu-Ansah had been promoted three times within the company. During a routine meeting in 2007 with his manager, Mr. Owusu-Ansah expressed concerns about discrimination by co-workers and managers. Within that meeting, Mr. Owusu-Ansah allegedly was agitated, banged his hand on the table, and said that someone was "going to pay" for this.
Mr. Owusu-Ansah's manager then contacted her own manager about the incident, who then contacted the senior human services manager. They all expressed a concern that "it sounded as though a threat had been made against an employee, or employees of the company." A security manager was notified, and he suggested they contact Dr. Marcus McElhaney, Ph.D., an independent consulting psychologist who specialized in crisis management and threat assessment.
Dr. McElhaney met with Mr. Owusu-Ansah and they talked about the current situation. Dr. McElhaney concluded that Mr. Owusu-Ansah was stressed and agitated, possibly delusional, and should be placed on paid leave so that the company could evaluate his mental state further. Coca-Cola placed Mr. Owusu-Ansah on paid leave on December 19, 2007.
At Dr. McElhaney's suggestion, Mr. Owusu-Ansah met with a psychiatrist, but refused to talk about the current issues or sign a waiver allowing the psychiatrist to share his thoughts and findings with Dr. McElhaney. Thus, on January 22, 2008, Dr. McElhaney recommended that Mr. Owusu-Ansah undergo a "fitness-for-duty" evaluation "to rule out the possibility of a mental condition that could interfere with his ability to successfully and safely carry out his job duties."
Coca-Cola notified Mr. Owusu-Ansah that he would be terminated if he did not undergo the evaluation. Mr. Owusu-Ansah met with the psychiatrist again to be assessed for his fitness to work. The psychiatrist recommended a personality test before clearing Mr. Owusu-Ansah for work. When Mr. Owusu-Ansah did not show up for the personality test, Coca-Cola notified him that he would be placed on unpaid leave if he continued the noncompliance. Shortly thereafter, Mr. Owusu-Ansah was administered the personality test and returned to work on April 28, 2008.
Mr. Owusu-Ansah then sued Coca-Cola. His complaint alleged that the "fitness-for-duty" evaluation he was required to take violated the ADA. The district court ruled that the evaluation administered to Mr. Owusu-Ansah was both "job-related" and "consistent with business necessity", and therefore permissible under the ADA. After the decision in favor of Coca-Cola, Mr. Owusu-Ansah filed with the Circuit Court of Appeals.
Title I of the ADA provides: "A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. §12112(d)(4)(A).
The first issue the court looks to is whether Mr. Owusu-Ansah is protected by the medical examination prohibition. This is an issue of first impression (i.e., the first time this issue has been considered by this court) for the Eleventh Circuit, and so the court looked to other circuits as well as to the "plain meaning" of the statute for guidance. Agreeing with the Tenth Circuit, this court decided that since the medical examination prohibition only refers to an "employee", as opposed to a "qualified individual", Mr. Owusu-Ansah is in fact protected by the ADA and does not have to prove that he is a qualified individual with a disability.
The court next considered whether the examination that Mr. Owusu-Ansah had to undergo was "job-related and consistent with business necessity." The EEOC lays out guidelines for this issue: the requirement of “job-related and consistent with business necessity” may be met when an employer has a reasonable belief, based on objective evidence, that either (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. EEOC guidance further provides: “An employer's reasonable belief … must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination. Such a belief requires an assessment of the employee and his/her position and cannot be based on general assumptions.”
The EEOC has further commented in its regulations that if an examination excludes an individual with a disability, because of the disability, and does not relate to the essential functions of a job, it is not consistent with business necessity.
Application of these guidelines and comments are few, however. The Sixth Circuit addressed “job-relatedness” and “business necessity” in Denman v. Davey Tree Expert Co., stating that a request for a medical examination complies with such requirements when: “(1) the employee requests an accommodation; (2) the employee's ability to perform the essential functions of the job is impaired; or (3) the employee poses a direct threat to himself or others.” The Fourth Circuit, in Pence v. Tenneco Auto. Operating Co., stated: “It is undoubtedly ‘job-related and consistent with business necessity’ to ascertain whether such an employee poses a danger to the workplace, to investigate how best to deal with any security risk that exists, and to determine whether the termination of the problem employee could potentially trigger the threatened actions or instigate a violent reprisal ….” Although neither of these cases are factually on-point with the current case, these examples show how other circuits are interpreting the ADA, the EEOC’s guidelines, and available case law. This court finds the EEOC guidelines “persuasive”, but does not conclude that reversal is in order.
According to this court, "job-relatedness is used in analyzing the questions or subject matter contained in a test" that an employer will use to make a decision, while business necessity analyzes whether there is a specific business reason that makes such a test necessary for the employer to make that decision. The court cited to its decision in Williams v. Motorola, Inc. to find that this examination was "job-related" because an "employee's ability to handle reasonably necessary stress and [to] work reasonably well with others are essential functions of any position." This “essential function” is not present in any opinions besides these two.
In addition, the court differentiated job-relatedness from business necessity by stating that business necessity is larger in scope and is used when questioning if the examination should even be issued. The court found the administration of the examination to be consistent with business necessity because Coca-Cola had objective evidence supporting a suspicion that Mr. Owusu-Ansah was unstable. Furthermore, the court concluded that because the instability impaired his performance of essential functions, an employer may appropriately decide to administer a "fitness-to-work" examination.
Mr. Owusu-Ansah, after losing his case in the District Court and the Court of Appeals, appealed to the United States Supreme Court. The Supreme Court denied certiorari. In denying the case, the Supreme Court has eliminated further available action for Mr. Owusu-Ansah.
In this case, the Eleventh Circuit first agrees with the Tenth Circuit in deciding that the medical examination prohibition applies to all employees, with and without disability. Second, the court clarifies that in the Eleventh Circuit, an "employee's ability to handle reasonably necessary stress and [to] work reasonably well with others" are deemed essential functions of any position, regardless of the employer. The Fourth and Fifth and Sixth Circuits have not addressed whether an "employee's ability to handle reasonably necessary stress and [to] work reasonably well with others" are essential.
The court also held that if there is objective evidence supporting a suspicion that the plaintiff was unstable, an employer may appropriately decide to administer a "fitness-to-work" examination because the instability impairs Mr. Owusu-Ansah from performing the essential functions of his job.
With agreement between the circuits, and a Supreme Court denial to consider the case, these criteria become more wide-spread and generally acceptable.