As long as you can show a business necessity for asking an employee to undergo a mental examination, there’s no ADA or Fair Employment and Housing Act (FEHA) liability. Erratic, insubordinate behavior that continues after a request to stop is a good business reason.
Recent case: Maria spent a lot of time and energy emailing, texting and dropping by her former supervisor’s office to talk. He put her off, telling her he was busy or simply ignoring the many messages she repeatedly sent.
Finally, HR urged the supervisor to tell Maria in no uncertain terms that she should cease all contact.
He did, sending an email that said, “I will no longer be answering or acknowledging emails, phone calls or texts from you. Do not email, text, or phone me any longer.” She continued despite the order.
That’s when Maria’s employer concluded she needed help. Her behavior made her former boss think he was being stalked. Maria was ordered to undergo a fitness-for-duty mental exam. Again, she was ordered to cease all contact or face discharge.
The doctor who examined Maria concluded she seemed unable to perceive that her actions were unacceptable and recommended weekly counseling before she would be allowed to return.
Maria sued, alleging among other claims, that being forced to undergo the evaluation violated FEHA.
The court dismissed her case, reasoning that her employer had a good reason for the demand—a reasonable concern that she was mentally ill and that she might pose a danger to other employees, including her former supervisor. (Valdivia v. Southern California Gas Company, No. B254834, Court of Appeal of California, 2015)
EEOC on medical inquires
“Generally, an employer only may seek information about an employee’s medical condition when it is job related and consistent with business necessity. This means that the employer must have a reasonable belief based on objective evidence that: An employee will be unable to perform the essential functions his or her job because of a medical condition, or the employee will pose a direct threat because of a medical condition.”