Pre-emptive fitness-for-duty exams

Common sense won out in an ADA case from the 9th U.S. Circuit Court of Appeals. Here is how the 9th Circuit sketched it out in its July 27 opinion in Brownfield v. City of Yakima: A police officer, before he went on FMLA leave, exhibited odd behavior: swearing at a supervisor; leaving a meeting despite an order to stay; reporting that his legs were shaking at a traffic stop he conducted; having his wife call the police to report a domestic abuse incident; and saying to several co-workers, "It doesn't matter how this ends." The police department asked him to undergo a fitness-for-duty exam before returning from leave. He refused and was terminated. Among other claims, he said the request violated the ADA prohibition against such exams unless they are job related and consistent with business necessity. The 9th Circuit affirmed the trial court's grant of summary judgment for the employer. Here is what is interesting: The court asked whether such an exam could be given as a pre-emptive measure even before an employee's work performance declines? The answer: Yes. It was an issue of first impression for the 9th Circuit. If such a pro-employee court gives the green light, other courts will as well.