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Stick to facts with mental fitness tests

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in Discrimination and Harassment,Employment Law,Human Resources

Don Jackson, a county utility worker, got quite a shock one night when a psychologist called to confirm an appointment in two days. Jackson hadn't made the appointment, his employer had.

When Jackson complained, his manager said he felt Jackson wasn't mentally fit for the job and was "hypersensitive." The manager also told Jackson that "there was medication for people like [him]." Jackson was a four-year employee who had never been criticized for his work performance or attitude, nor had he ever sought treatment for any mental health problem.

He got an attorney who demanded an explanation for the mental exam. The employer claimed that Jackson was easily confused and forgetful. He was fired soon after and sued, citing discrimination and retaliation on the basis of a perceived disability under the Americans with Disabilities Act (ADA).

A district court sided with Jackson. Reason: A "fitness-for-duty" test by itself might not be enough evidence that the employer saw the employee as disabled. But the manager's statements, combined with a memo describing the worker's "unusual traits and behavior patterns", support the conclusion that the employer "perceived him as substantially impaired in the major life activity of learning and/or cognitive thinking." (Jackson v. Lake County, Ill., No. 01C 6528, N.D. Ill., 2002)

Advice: Don't spring fitness-for-duty tests on workers without warning. You've got the law on your side when requesting fitness exams that are clearly job-related and consistent with business needs. That said, approach and follow-through are vital, just as in golf. Demanding a blanket mental examination for vague reasons won't hold up.

This employer got in trouble by adding off-the-cuff comments. Avoid observations unless they directly relate to the employee's job performance. Pose your request for an exam as "We need to find out ..." rather than "We think you are ..."

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