This is our second entry in this series of 3 blog posts on mental examinations and the Americans with Disabilities Act. For the first article, discussing ADA mental examinations and the employer’s obligation to provide a safe workplace, click here.

Our second case study poses the question, can an employer require a worker to undergo a psychological exam without creating an ADA “regarded as disabled” claim for the employee?

The facts. Evangelene Monroe had been a job scheduler for her employer Consumers Energy (CE) for 13 years when she started exhibiting aberrant behavior. Her supervisor noted that Monroe was losing focus and concentration at work, that she had become increasingly secretive, and was not interacting with her co-workers during staff meetings as in the past. Monroe’s work performance was suffering significantly.

Monroe filed a complaint with CE’s Compliance Department, in which she reported that she was being tracked and surveilled by coworkers by various means: interception of personal text messages, listening devices on her phone and in her work cubicle, camera surveillance at work and at home, a GPS tracking device on her car, and eavesdropping via the key fob for her vehicle. Her complaint was investigated by Kathleen Delaney, CE’s director of Human Resources, who did not find any merit to Monroe’s allegations. Due to the nature of Monroe’s charges, Delaney arranged to have Monroe scheduled for an IME to determine if she was able to perform the essential functions of her job.

Dr. Dutes performed a neuropsychology evaluation and reported that Monroe showed a high degree of interpersonal sensitivity and a tendency toward paranoid thinking. He recommended 12 sessions of psychological counseling and then a reevaluation of her ability to return to work. Monroe refused the counseling and in January 2014 she went out on paid sick leave for several months. She then worked part time elsewhere and collected some unemployment.

In late 2014 Delaney contacted Monroe about returning to work but told Monroe she would still have to undergo the counseling. Monroe insisted that she was better, which was confirmed by another neuropsychological exam in April 2015. Nonetheless, Dr. Dutes still recommended 8-12 counseling sessions. Monroe still objected and filed a charge with the EEOC. She was not satisfied with the EEOC investigator because, according to Monroe, the investigator told Monroe she needed to undergo the counseling. Monroe finally agreed to the counseling and returned to work at CE full time in December 2015. No surprise, Monroe filed suit against CE in January 2016.

Regarded as disabled? The ADA extends its nondiscrimination protections to include an individual who does not have an impairment but is regarded as having one. In her lawsuit Monroe did not claim that she had a qualifying mental impairment under the ADA. Rather, Monroe alleged that by requiring her to undergo the neuropsychological exams, CE showed that it “regarded” her as disabled. She further alleged that the exams constituted an adverse employment action by CE.

To establish this claim, Monroe had to show that she had been discriminated against because CE perceived that she had a mental impairment. The court explained that a person is “regarded as” being disabled under the ADA if: (1) an employer mistakenly believes that a person has a physical impairment . . . or (2) an employer mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, the employer’s actions are based on a misperception about the individual.

The employer’s Catch-22. So Monroe’s charge was that CE regarded her as disabled by virtue of its requirement for her to participate in mental health evaluations. Wow, that would really be a Catch-22 for employers, wouldn’t it? The employer has the no-win choice of (1) allowing the employee to continue to work with possible consequences of poor performance or safety risks to the employee or his co-workers or the employer’s property; or (2) requiring the employee to undergo a mental exam at the cost of establishing a claim of regarded-as discrimination against itself. A third possibility is equally untenable: terminating the employee on the basis of the employer’s unsubstantiated concerns about the employee’s mental condition and risking a true regarded-as claim.

The court saves the day. Fortunately for employers, the court ruled that an “employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.” Relying on an earlier case from the 6^th Circuit the court explained that an employer has the right to determine the cause of an employee’s aberrant behavior and doing so is not enough to suggest that the employee is regarded as mentally disabled. An employer-requested psychological evaluation is in full compliance with the ADA if “restricted to discovering whether the employee can continue to fulfill the essential functions of the job”; in other words, if it is job related and consistent with business necessity.

You can review the court’s opinion here: Monroe v. Consumers Energy (E.D.Mich., S.D. 2017)

PINGS FOR EMPLOYERS

Track behavioral changes. As with our employer in last month’s case study, CE had numerous examples of
Monroe’s strange behavior, not just a couple of isolated incidents. Moreover, Monroe’s supervisor noted that her
behavior and job performance had changed over time. That observation of change can be an important factor
in supporting the need for a mental health exam.
Keep consistent. In requiring the neuropsychological exams, CE focused on whether Monroe could perform her
job functions. This supported that the exam was job-related and consistent with business necessity. This is
permissible even though the exam might reveal an ADA-qualifying mental impairment.
Maintain communication. This employer was very diligent in staying in touch with the employee and trying to bring
her back to work. In fact, Monroe did return to work full time due to CE’s efforts. Although Monroe sued anyway,
CE had done the right thing. This did not play a part in the court’s written decision, but CE certainly gets Brownie
points for good employment practices.

UP NEXT: One intriguing issue the court did not address directly is whether an employer can require an employee to undergo psychological counseling as a condition of returning to work. Stay tuned for our 3rd post in this series, which will take on this and other issues related to the ADA and mental health exams.

MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination. You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialist is at the ready with practical advice and expert guidance. To learn more, ping us at ping@matrixcos.com.