Sheinfeld Discusses Legal Liability of Employee Psychological Exams

Winston & Strawn partner Stephen Sheinfeld, who serves as head of the firm's labor and employment relations practice group in New York, was quoted in the September 25, 2012 Human Resource Executive Online article "Was Employee's Psychological Exam an Unreasonable Requirement?"

A Michigan appeals court recently ruled that an employer violated the Americans with Disabilities Act (ADA) by requiring an erratic employee to undergo a psychological evaluation before returning to work. An exception to this rule is if the organization can prove that the exam is job-related and necessary to business.

According to Mr. Sheinfeld, the focus must remain on how the employee's behavior affects his or her job performance, rather than why the behavior is occurring. "As an employer, you want to be able to determine the cause of disconcerting behavior, without being exposed to the ADA or disability laws," he says. "Typically, the employer is best advised to focus on the employee's conduct itself as opposed to its root cause."

Any instances in which an employee's behavior impacted job performance should be documented before psychological help is suggested. "As a practical point, when you do go to refer an employee for an exam or psychological counseling, make sure it's job-related and consistent with business necessity, and document it. If an employer decides to make that referral, the basis -- why the organization feels the exam is needed -- must be documented," Mr. Sheinfeld told HR Executive Online.