May an Employer Require a Medical or Psychological Examination of its Employee?

Under California law, an employer may require a medical or psychological examination of an employee if the examination is “job related and consistent with business necessity.” (Gov. Code, § 12940, subd. (f)(2).) Further, an employer also “may make disability-related inquiries, including fitness for duty exams, and require medical examinations of employees that are both job-related and consistent with business necessity.” (Cal. Code Regs., tit. 2, § 11071, subd. (d)(1).) A fitness-for-duty evaluations (“FFD”) is “job-related” if it is “tailored to assess the employee’s ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or others due to disability.” (Cal. Code Regs., tit. 2, § 11065, subd. (k).)

In Kao v. The University of San Francisco, a recent decision, the California Court of Appeal addressed whether the University could lawfully require an examination to determine whether its employee posed a danger to others in the workplace. In this case, multiple people had reported multiple instances of the employee’s threatening behavior. Further, the University’s decision to require its employee to have an FFD was based on advice from an expert on threat assessment and fitness-for-duty evaluations who advised that the only way to assess whether the employee could do his job in a safe way was to have an independent medical exam by an independent physician. At trial, the University presented unrefuted expert testimony that an FFD was appropriate under the circumstances. The Court of Appeal held that under these circumstances, the jury had ample evidence from which to find that an FFD was necessary to determine whether the employee posed a danger to others in the workplace.

While an employer may not require an examinations in circumstances that are not job related and consistent with business necessity, this decision suggests that protecting others in the workplace is consistent with business necessity. Employees should be aware that their employer could legally require a medical or psychological examination in circumstances similar to that in Kao, where the employer has made a well-supported determination that the employee has engaged in behavior that could pose a danger to others in the workplace.

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