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Employer Can Request That Employee Undergo Medical Examination

The issue of when and under what circumstances an employer can request that an employee undergo a medical examination under the Americans with Disabilities Act was recently decided in the case of Ward v. Merck & Co., 17 Am. Disabilities Cas (BNA) (E.D. Pa. 2006).

Ward was hired by Merck as a chemist in 1996. By October 2002, Ward's supervisors noticed that Ward had become more introverted in the workplace. Ward had been diagnosed with anxiety disorder, for which he refused the recommended treatment. Merck was not aware of the diagnosis. At one point, Ward had resigned citing job-related stress, but withdrew his resignation when asked to reconsider. Ward took a three week leave of absence when he was diagnosed as possibly suffering from schizophrenia following an incident of screaming at co-workers in the cafeteria regarding the quality of food. Upon his return from the leave of absence, Ward's behavior and performance deteriorated to the point where his supervisors became concerned for his well-being and the well-being of his co-workers. Merck subsequently requested that Ward undergo an examination with occupational health. Ward did not agree that his "behavior, performance or productivity" had changed and did not agree that an examination was necessary. Ward, therefore, did not undergo an examination. Merck suspended Ward with pay and warned that he would be terminated if he did not agree to an examination. Merck advised Ward that "the approach the company has chosen to take at this time by sending you for a fitness-for-duty evaluation is specifically intended not to punish or discipline you even though your workplace productivity and performance has been well below acceptable standards and your behavior has often been unprofessional." Ward continued to refuse to submit to an examination and was terminated.

Ward sued asserting claims under the ADA. He claimed that the examination violated 42 U.S.C. 12112(d)(4) of the ADA which states that "[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."

Upon finding that this portion of the ADA pertained to non-disabled employees, the court analyzed whether Merck's request for examination in this case was "job-related and consistent with business necessity." The court stated in order to meet this test, "there must be sufficient evidence for a reasonable person to doubt whether an employee is capable of performing the job, and the examination must be limited to determining an employee's ability to perform essential functions." The court further noted "an employee's behavior cannot be merely annoying or inefficient to justify examination" but there must be a "reasonable belief based upon objective evidence" that the employee's ability to perform the essential functions of the job is "impaired by a medical condition or the reasonable belief that an employee will pose a direct threat due to a medical condition." In the current case, the court found that Merck's requested medical examination was justified, noting that Ward's behavior "posed more than a mere inconvenience for his supervisors."

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