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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Employment Law
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Experience:  19+ Years of Legal Practice in the Employment law arena.
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Psych evaluation question

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I was asked to attend a meeting today by my boss. The request was made at 12:15 for a 2 pm meeting with herself and HR. I called the person who will be my new boss once some hurdles are cleared to see if she was aware of this - she is working through HR to get my boss demoted - my boss is unaware of this. In the 2 pm meeting I was told that due to 2 incidents that occurred in early May I was being asked to have a medical exam. The appointment is at a company facility tomorrow morning which is 2 hours away. When I looked up the "Dr." I have the appointment with I found out he is not an MD he is a behavioral therapist. I'm paranoid and feel like I am being jerked around. Potentially pre-retaliation for what has leaked out to my current boss. The HR person involved has nothing to do with my division.  What are my rights in this situation?  Should I have been given some notification that the "incidents" were problematic - I was not?  Both issues have been resolved and I have never had anyone from HR question me on any of it.  Wouldn't that have been the appropriate first step?

Hi, my name is XXXXX XXXXX I thank you for your inquiry. I have been practicing Employment law for 19+ years and look forward to assisting you. With regard to your post:

I was asked to attend a meeting today by my boss. The request was made at 12:15 for a 2 pm meeting with herself and HR. I called the person who will be my new boss once some hurdles are cleared to see if she was aware of this - she is working through HR to get my boss demoted - my boss is unaware of this. In the 2 pm meeting I was told that due to 2 incidents that occurred in early May I was being asked to have a medical exam. The appointment is at a company facility tomorrow morning which is 2 hours away. When I looked up the "Dr." I have the appointment with I found out he is not an MD he is a behavioral therapist. OK, so this is a mental examination?

 

I'm paranoid Do you mean that literally, as in, do you have the mental impariment of paranoia?

 

and feel like I am being jerked around. Possible.

 

Potentially pre-retaliation for what has leaked out to my current boss. Or post-retaliation, if he thinks you were instrumental in turning some people against him.

 

The HR person involved has nothing to do with my division. Does he and your current boss have the authority to order this exam?

 

What are my rights in this situation?
Under the ADA (Americans with Disabilities Act), as a hired individual who works there, your employer cannot require that you take a medical examination or ask questions about your disability (or perceived disability), unless they are related to your job and necessary for the conduct of your employer's business. As such, depending on those incidents to which you refer, would they cause concern about an ability to do your job properly, OR, did they represent a violence tendency or a suicidal possibility? If so, your employer might have a duty to require a psychological exam and/or inform your coworkers, to keep the workplace safe. However, if the incidents have no bearing on mental health, then it would seem they may be overstepping.

 

Should I have been given some notification that the "incidents" were problematic There is no requirement, no. In fact, it appears that now in early June, after analyzing it, possibly investigating it, they arguably are NOT advising you.

 

- I was not? Both issues have been resolved and I have never had anyone from HR question me on any of it. Wouldn't that have been the appropriate first step? Appropriate is not really what the law recognizes, at it is somewhat subjective. if the incidents required investigation of witnesses or other facts, no, it is not always wise to question the 'accused' before seeing if there is even an alleged problem (which one would learn from less involved persons, rather than those directly involved). Witnesses, for instance. Also, some incidents don't require questioning, if pertinent facts are not disputed (i.e. perhaps they are on video, or perhaps you don't dispute the facts).

That all being said, take note. Under the Americans with Disabilities Act, once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer's business. For example, if you appeared to be homicidal or suicidal, your employer might have a duty to require a psychological exam and/or inform your coworkers, to keep the workplace safe. But if none of that is remotely what these incidents relate to, then they can not make you go, and to do so would be violative of the ADA.

 

I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions.

Sincerely,

Alexia Esq.

Customer: replied 3 years ago.

My behavior was described by my boss during this meeting referring to the two incidents as "erratic". It was not characterized as dangerous, disruptive, unproductive, or violent. If I were to submit to this examination, what obligation of confidentiality would this person (I believe he is a Behavioral Therapist) be under? Are all treatment professionals under the same obligation of confidentiality regardless of who is paying them? What would he be allowed to report back to my employer?

Good morning, and thank you.

My behavior was described by my boss during this meeting referring to the two incidents as "erratic". That is rather vague. I am not sure it would rise to the level required to meet the criteria that would suddenly allow the employer to require an examination in order to keep your job. See that EEOC description noted below.

It was not characterized as dangerous, disruptive, unproductive, or violent. I understand.

If I were to submit to this examination, what obligation of confidentiality would this person (I believe he is a Behavioral Therapist) be under? All the usual ones, accept because by agreeing to endure it, you are acquiesing and knowledgeable to the fact that the results are available to and for the purpose of informing your employer. In fact, generally, the medical evaluating professional will have you sign off as to your understanding that in this case, confidentiality does not exist vis a vis your employer. But, your employer must generally keep it confidential.

Are all treatment professionals under the same obligation of confidentiality regardless of who is paying them? Yes, but when it is a permitted employment examination, it always goes to the employer, by definition. But,
the confidentiality provisions of the ADA require employers to keep confidential all information relating to your medical condition or health, (except in those very limited situations. See 42 U.S.C. § 12112(d)(3) (1994), and in the regulations, 29 C.F.R. § 1630.14(c) (2000).

What would he be allowed to report back to my employer?
The results of his examination.

Going back, "...an employer may only ask its employees disability-related questions or require medical examinations that are "job-related and consistent with business necessity." This means that the employer has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition. For more information on this issue, please refer to the enclosed policy guidance concerning "Disability-Related Inquiries and Medical Examinations of Employees." http://www.eeoc.gov/eeoc/foia/letters/2001/ada_inquiries_confidentiality.html

I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions.

Sincerely,

Alexia Esq.

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