Every employer has received one: the anonymous letter or email in which someone complains about one of your employees. How is an employer supposed to respond when faced with one of these complaints? This question was answered by New Jersey’s Appellate Division in the case of In The Matter of Paul Williams, Township of Lakewood, ____ N.J.Super ____ (App. Div. 2016)(A-0341-15T2).
Paul Williams was a truck driver in the Lakewood Township Public Works Department for nine years when in March 2013 the Township Manager received an anonymous letter from “a very concerned employee.” The letter claimed that Williams had “some sort of mental issues” and complained about his daily tirades and outbursts. Specific reference was made to a recent incident involving union shop stewards. The letter concluded with allegations that Williams was “a time bomb waiting to explode” and employees were concerned for their safety.
Inexplicably, the Township did not respond to the letter for over eight months, but in December 2013 it advised Williams that he was being sent for a “psychological fitness-for-duty examination” and that if he refused, he would be subject to disciplinary action. Williams did refuse, asserting that the exam was not “job-related and consistent with business necessity” as required under the Americans With Disabilities Act, 42 U.S.C.A., § 12112 (d)(4)(A). Williams was then advised that he was being terminated.
The matter was appealed to the Civil Service Commission. At the hearing, the Public Works Director testified that Williams had been confrontational at times, but concluded he was “no different than any other employee.” The Director also admitted seeing the anonymous letter, but stated he did not investigate any of the allegations it contained. Based on this sparse evidence, the Administrative Law Judge concluded that there was no basis to require Williams to submit to the psychological exam. The Township appealed, and the full Commission reversed, finding that Williams’ refusal to take the exam constituted insubordination. It converted his termination into an unpaid suspension, and ordered Williams to submit to and pass the psychological exam in order to be reinstated. Amazingly, the Commission did not address any of Williams’ claims under the ADA.
Williams appealed the Commission’s decision to the Appellate Division. The Court’s analysis focuses solely on that part of the ADA that prohibits employers from “requir[ing] a medical examination” or “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability … unless such examination or inquiry is shown to be job-related and consistent with business necessity.” The Court cites extensively to the Equal Employment Opportunity Commission’s regulations and enforcement guidelines which make clear that an employer cannot require an employee to undergo a medical test that does not serve a legitimate business purpose.
Clearly, the psychological fitness-for-duty test that the Township required Williams to undergo was a medical examination under the ADA. Therefore, the exam would only be lawful if it was “job-related and consistent with business necessity.” The EEOC has defined this standard to require an employer to have “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.” As noted by the Williams Court:
In other words, the employer must reasonably believe, either through direct observation or through reliable information received from credible sources, that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat. Then, and only then, may the employer lawfully require the employee to undergo a psychological fitness-for-duty examination.
Applying this standard to the facts before it, the Court concluded that the Township did not meet its burden to show that the exam it requested Williams to take was “job-related and consistent with business necessity.” The Department Director admitted that Williams’ job performance was not the basis of the demand that he submit to the test. Nor was there any evidence presented that Williams had threatened other employees. The test was required based solely upon the anonymous letter.
As to the reliance that was placed on the letter by the Township, the Court stated the following:
[I]t is clear that, even though the letter made allegations of disruptive behavior, it did not represent the type of reliable information from a credible source upon which the Township could reasonably rely in ordering a psychological examination. The identity of the “[v]ery concerned employee at Lakewood Public Works” who sent the letter was unknown. Therefore, the information in the letter was exactly the type of innuendo and rumor that the EEOC has advised employers is insufficient to support a mandatory evaluation.
What should the Township have done in response to the letter? All employers have the right to inquire into the ability of any employee to perform their jobs. The Township could have solicited information about Williams’ job performance. It could also have contacted the union shop stewards about the alleged outburst mentioned in the letter. In short it should have investigated the letter and not sat on it for over eight months and then relied on it as the sole basis of its order to Williams.
Williams condenses the ADA and the EEOC’s guidelines into clear and understandable standards for employers who are contemplating fitness-for-duty exams for employees. It also provides a step-by-step analysis of how an employer should respond to the next anonymous employee complaint letter.
Should you have any questions on this issue, please contact me at ptcollins@nmmlaw.com or 908-252-4237.