Can an employer require an employee to undergo a fitness-for-duty evaluation? Or does such a demand violate the Americans with Disabilities Act (ADA)? The appellate court in Wright v. Illinois Dept. of Children and Family Services considered this question — and whether the worker in question had been constructively discharged.

Test refused

The plaintiff, a caseworker for a state agency, retired from her job after her employer ordered her to undergo a fitness-for-duty evaluation. The agency claimed that it required the evaluation because of the plaintiff’s:

• History of defiance to all levels of management,
• Inability to recognize risks to children in foster care,  
• Failure to report incidents of injury,
• Refusal to accept agency decisions, and
• Blatant disregard for rules.

The plaintiff refused to undergo the test and was placed on desk duty. After taking some vacation time, she retired and filed suit against her employer.

A jury found for the plaintiff on her ADA claim. Notwithstanding the jury’s verdict, the trial court granted her employer’s motion for summary judgment regarding her constructive discharge claim. Both parties appealed.

Business necessity questioned

The U.S. Court of Appeals for the Seventh Circuit affirmed, holding that there were genuine issues of material fact as to whether the agency’s fitness-for-duty evaluation order was consistent with a business necessity. Under the ADA, it’s the employer’s burden to establish that such a medical examination is necessary — meaning that it’s vital to the business and not simply expedient.

The court held that a medical examination is job-related and consistent with a business necessity if the employer reasonably believes that a medical condition will either: 1) impair the employee’s ability to perform essential job functions, or 2) threaten the employee’s well-being. The employer’s reasonable belief must be based on objective evidence that’s obtained (or is reasonably available) before it makes a disability-related inquiry or requires the employee to undergo a medical examination.

The employer’s belief also requires an assessment of the employee and his or her position. It can’t be based on general assumptions or rely on reasons that were acceptable in other cases.

According to the court, this employee’s annoying behavior or inefficiency didn’t justify a medical evaluation. She wasn’t put on desk duty when she was first ordered to undergo the test and still had her own cases and had even been assigned a new one. She was only put on desk duty two months later after she had refused to undergo the test. The inconsistency of the agency’s application of its evaluation procedures was objective evidence that the evaluation wasn’t consistent with a business necessity. Therefore, there was a genuine issue of material fact for the jury as to the plaintiff’s ADA claim.

Constructive discharge denied

The appeals court also upheld the trial court’s decision to grant the employer’s motion for judgment as a matter of law on the constructive discharge claim because constructive discharge is based on an objective standard. An employee is constructively discharged when a reasonable person would believe that his or her working conditions are intolerable and that the employer had acted in a manner that communicated immediate and unavoidable termination. The prospect of being fired at the end of an extended process isn’t, by itself, the basis for finding a constructive discharge.

In this case, the appeals court found that the employer had assigned the employee to desk duty until she took the examination and the results of her fitness-for-duty evaluation could be assessed. The agency had initiated disciplinary proceedings against the employee after she’d refused to submit to the examination.

The employee chose to use her vacation time and not be in the office while the proceedings were pending. Upon her return to work, she submitted retirement paperwork effective at the end of the month. The agency hadn’t terminated her employment and didn’t tell her that she would be terminated or indicate that termination would be certain. Thus, she wasn’t constructively discharged.

Important lessons

Wright provides several tips for employers trying to avoid ADA suits. First, you must have a legitimate business necessity before requiring workers to undergo fitness-for-duty or medical exams. And you must act consistently with your claimed necessity. What’s more, you need objective grounds to believe an employee’s condition impairs his or her ability to perform or poses a threat.

This case also highlights the high burden on employees to prove a constructive discharge. Plaintiffs must prove that a reasonable person would believe that their working conditions were intolerable and termination was imminent and unavoidable. 

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