25 September 2019

Peculiar Behavior and the ADA

You observe an employee acting oddly at work. But, the employee’s work has not suffered. You don’t think the employee is truly a harm to himself, but they’re just…a bit off.

What can you do without violating the law? Specifically, how can an employer inform themselves on whether an employee’s odd behavior is actually a “direct threat” or “job-related” under the ADA (and, therefore- would make requiring a fitness-for-duty exam legal)? What can an employer do before a fitness-for-duty request?

In the 6th Circuit, we follow the parameter: “That an employee’s behavior could be described as ‘annoying or inefficient [does not] justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.”

The employer has the flexibility to do the following without violating the ADA’s fitness-for-duty requirements or turning the situation into a “regarded as disabled” issue:

  1. Respond to concerning behavior by making inquiries into the ability of the employee to perform job-related functions (soliciting information from supervisors, the employee him/herself).
  2. Seek advice from outside health professionals (including EAP provider, psychiatrist, psychologist), to determine whether further/fitness-for-duty examination is needed.
  3. Seek advice from, or have security personnel observe the employee (to assist with evaluating the “direct threat” inquiry).
  4. Investigate and consult with experts in threat assessment and workplace violence.
  5. Offer an employee a leave of absence.
  6. Suggest that the employee take time off and seek help.
  7. Refer employee to EAP (non-mandatory).
  8. HR can meet with employee to discuss workplace issues and ask employee if he/she would be willing to meet with a consultant the company uses to resolve workplace issues. If the employee does meet with such a consultant, the employer can subsequently utilize that professional’s opinion on “emotional and psychological stability” and/or the employee’s ability to perform his/her job.
  9. Admonish, coach, and discipline for unprofessional behavior.
  10. Address performance issues, clarify expectations.