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Medical examinations under the Americans with Disabilities Act are not often the subject of litigation. Yet, for employers, the decision as to when, and under what circumstances, an employee can be examined will be an issue often faced. In the recent decision Ward v. Merck & Co., the district court’s decision regarding an employer’s request that an employee exhibiting disturbing workplace behavior undergo a medical examination gives guidance as to how an employer can undertake such a request. Gary Ward was hired by Merck as a chemist in mid-1996. He was assigned to a laboratory run by Steven Cohen who was, in turn, supervised by Michael Washabaugh. Ward passed his pre-employment physical and worked without incident until fall 2002. In October 2002, Cohen noticed that Ward was becoming more introverted in the workplace. Unbeknownst to Merck, Ward had been diagnosed with anxiety disorder and was recommended to treatment, which he declined to pursue. The following month, Ward tendered his resignation to Merck citing workplace stress. His supervisors asked him to reconsider, and he agreed to remain in the workplace. In February 2003, Ward had an episode where he screamed at co-workers in the company’s cafeteria about the quality of the food. He was examined and diagnosed as possibly suffering from schizophrenia. Ward took a three-week leave of absence and returned to the workplace in late March. Following his return, Ward’s behavior and performance deteriorated to the point where his supervisors became concerned for his wellbeing and the wellbeing of others. Specifically, Ward was observed to be mostly uncommunicative, interrupted by bursts of loud and inappropriate verbalizations. Furthermore, Ward’s performance became as erratic as his behavior. This behavior continued for months, until, in late June 2003, Washabaugh sent Ward an e-mail requesting that he make an appointment with occupational health for an examination. Ward was specifically told that his supervisors were “concerned about his overall wellbeing and his ability to continue to perform effectively.” Ward did not attend an examination and, in fact, did not agree that one was necessary or that his “behavior, performance or productivity” had changed or was an issue. After the deadline for Ward to be examined had passed, he was suspended from work with pay based on his “refusal to agree to a fitness-for-duty evaluation.” Merck advised Ward, in writing, 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 was advised that he would be terminated in two weeks if he would not agree to an evaluation. He did not agree and was terminated as promised. ADA Claim Brought Ward initially brought suit claiming that he had been discriminated against by a hostile work environment had been terminated based on his disability. At summary judgment, however, Ward withdrew these claims and “recast his case against Merck as a prohibited medical inquiry claim and retaliation claim.” The court initially observed that medical inquiry claims are governed by 42 U.S.C. Section 12112(b)(4), which represents causes of action independent of disparate treatment and retaliation claims. Initially, because Ward abandoned his claim that he was actually disabled, the court addressed whether Section 12112 applied to nondisabled employees. The court found that it did. The court next considered whether Merck’s request for the examination was “job-related and consistent with business necessity” as required by the act. 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 noted that “an employee’s behavior cannot be merely annoying or inefficient to justify an examination.” Rather, there must be a “reasonable belief based on objective evidence” that the employee’s ability to perform the essential functions of his or her job is “impaired by a medical condition or the reasonable belief that an employee will pose a direct threat due to a medical condition.” Under the circumstances presented, the court found there to be little doubt that Merck’s requested examination was justified. The evidence was that Ward’s co-workers and supervisors found him to be “aggressive and threatening,” and that “people were afraid of him.” Under these circumstances, the court found that Ward’s behavior “posed more than a mere inconvenience for his supervisors.” Ward argued that Merck’s medical inquiry request was inappropriate because the company did not first counsel him on his performance. The court rejected this argument, finding that “nothing in the ADA indicates that such intervention must precede a post-employment medical inquiry.” Moreover, the court observed that because Ward never submitted to the requested examination “he precluded himself from being able to establish a genuine issue of material fact as to whether the examination was related to his job or was too broad in scope.” Analysis Merck’s approach was appropriately measured to focus exclusively on how Ward’s condition was affecting the workplace. Ward’s refusal to participate in the examination process likely frustrated his supervisors to the point where the refusal lead to his termination. The alternative approach could have been for Merck to focus exclusively upon Ward’s workplace performance, which, as noted, had deteriorated dramatically. Had Merck taken this approach, it would have avoided the medical inquiry issues, but would have potentially raised disparate treatment issues depending upon how his performance was judged. The case illustrates some of the perils in dealing with individuals with perceived or genuine disabilities in the workplace. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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