A recent case from a federal court of appeals examined the issue of how the Americans With Disabilities Act applies when a public safety employer requires one of its employees to submit to a fitness-for-duty examination. The case involved Charlene Wisbey, a dispatcher for the City of Lincoln, Nebraska.
During January and February of 2007, Wisbey utilized a significant amount of sick leave due to an upper respiratory infection. Wisbey was not compensated for this leave because she had previously exhausted her allotted sick leave. The City provided Wisbey a written warning for taking excessive leave and recommended that she apply for intermittent leave under the FMLA.
Wisbey complied with the request and on February 27, 2007, she applied for intermittent FMLA leave on the basis of depression and anxiety. Attached to the FMLA application, Wisbey submitted a medical certification from her physician, Dr. Pothuloori, stating that Wisbey “suffered from recurring cycle depression, anxiety which interferes with her sleep, energy level, motivation, and concentration.” Dr. Pothuloori’s certification also indicated that, although Wisbey was “able to perform any one or more of the essential functions of her job,” she would need to take time off work intermittently over the “next six months or longer.”
Because the medical certification from Dr. Pothuloori indicated that Wisbey’s concentration and motivation could be affected, Julie Righter, the Communications Manager of the City’s emergency services, began to question whether Wisbey was still able to adequately perform her job as an emergency dispatcher. The City eventually scheduled an appointment for Wisbey to undergo a fitness-for-duty exam with Dr. Eli Chesen, a psychiatrist.
During her appointment with Dr. Chesen, Wisbey described her lengthy battle with depression and insomnia and stated that the emergency nature of her job exacerbated those conditions. Wisbey described how she often “witnessed” deadly events over the radio. After the examination, Dr. Chesen submitted a three-page report stating that Wisbey suffered from “chronic relapsing depression (unipolar depression) which intermittently interferes with her ability to function at full capacity at work vis-á-vis tiredness” and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”
The City placed Wisbey on administrative leave with pay. Dr. Pothuloori then chimed in, disagreeing with Dr. Chesen’s conclusion that Wisbey was unfit for duty.
On April 3, 2007, the City met with Wisbey and provided her with a letter explaining that she was being terminated based on Dr. Chesen’s determination that she was unfit for duty. The letter stated: “For your own safety it is important that you not continue in your present position.” Wisbey filed a lawsuit contending that the City violated her rights under the ADA by insisting on the fitness-for-duty evaluation.
The federal Eighth Circuit Court of Appeals rejected Wisbey’s lawsuit. The Court began by reciting the ADA’s general rule that an employer is prohibited from requiring a medical examination or inquiring into the disability status of an employee unless the examination or inquiry is shown to be job-related and consistent with business necessity. As phrased by the Court, “the employer bears the burden to show the asserted ‘business necessity’ is vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary. Moreover, employers are permitted to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims, and fitness-for-duty exams are considered a reasonable means of making this determination. Courts will readily find a business necessity if an employer can demonstrate a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties, such as frequent absences, or whether an employee’s absence or request for an absence is due to legitimate medical reasons, when the employer has reason to suspect abuse of an attendance policy.”
Turning to Wisbey’s case, the Court noted that “as a dispatcher, Wisbey played an essential role in emergency functions and her position required her to be present to answer calls and alert at all times. In this position, people’s lives are often at risk and a dispatcher’s ability to focus and concentrate at all times is essential to adequate job performance. Where inquiries into the psychiatric health of an employee are job related and reflect a concern with the safety of employees, the employer may, depending on the circumstances of the particular case, require specific medical information from the employee and may require that the employee undergo a physical examination designed to determine his ability to work. The fitness-for-duty exam provided the City with a legitimate means of resolving the matter by allowing the City to ascertain whether Wisbey was fit to return to a position under the same working conditions that allegedly caused her illnesses.”
Wisbey v. City of Lincoln, No. 09-2100 (8th Cir. 2010).
This article appears in the August 2010 issue