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Fitness for Duty Exam Lawful for "Volatile" Behavior: 9th Circuit

An interesting and telling decision by the Court of Appeals for the Ninth Circuit yesterday.  That Circuit is about as employee-friendly as you can get in the courts these days, but this decision declares that an employer does not violate the Americans with Disabilities Act (ADA) by ordering a police officer to undergo a mental fitness for duty examination based on observations of "troubling or irrational" behavior, rather than observed performance issues. 

In this case, the plaintiff had suffered an off-duty head injury in 2000, which had resulted in some minor changes in the individual's personality.  By 2005, however, supervisors noticed "volatile" and "irrational" behavior towards co-workers and supervisors, and ordered him to undergo a mental evaluation.  The Plaintiff was deemed unfit for duty following the examination and was placed on administrative leave.  The City initiated termination proceedings that dragged on for months, and in the meantime, the City ordered the Plaintiff to attend follow-up fitness-for-duty examinations.  At some point, the Plaintiff refused; insubordination was added to the charges brought against him by the employer.

Although at the trial court level, the Plaintiff prevailed, the Court of Appeals joined several other circuits around the country in concluding that the instruction to the employee to submit to an examination (by a doctor of the employer's choice) was lawful under the ADA, in that the employer could show "business necessity" for such an examination, because "[w]hen a police department has good reason to doubt an officer's ability to respond to [stressful or dangerous] situations in an appropriate manner, an FFDE [fitness-for-duty exam] is consistent with the ADA."

It can be easily imagined that the same reasoning applied to police officers in this case can be applied to fire fighters.

The case is Brownfield v. Yakima, 9th Cir., No. 09-35628.

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