Say you have an employee who exhibits strange and intimidating behavior such as glaring at colleagues, standing inappropriately close to them, laughing in a wild cackling manner, clenching his fists, and forcefully hitting colleagues on the shoulder. Say also a number of his colleagues have complained that they are “terrified” of him and believe he could harm himself or others. What should the employer do?
The recent case of Kao v. University of San Francisco provides a useful example. After receiving numerous complaints from Kao’s colleagues, the university initiated an investigation. It also contacted a forensic psychologist with expertise in identifying workplace threats. The psychologist suggested that Kao undergo an independent medical examination to determine whether he was fit for duty. The university engaged another psychologist to perform the exam and instructed him not to provide the university with any medical information, but to simply report back on whether Kao was fit for duty and, in particular, whether he posed a danger to himself or others. Kao refused to undergo the exam and, as a result, the university fired him.
Kao’s subsequent lawsuit contained a number of claims, including an ADA-like claim (under California state law) that challenged the university’s right to insist on an independent medical exam. Both the lower and appellate courts ruled in the university’s favor, under a “direct threat” analysis. The court held that the employer had a right to require a fitness for duty exam, as it was “job related and consistent with business identity.” Further, the exam was specifically tailored to assess whether Kao posed a danger to himself or others (e.g., whether he was a direct threat). Given the employer’s duty to maintain a safe workplace, its insistence on a medical exam as a condition of employment was legal.
This case carries a number of important takeaways for employers. If you have an employee who is actually frightening other employees, and whom you suspect could partake in workplace violence, you have the right (and duty) to do something. UCSF walked the delicate tightrope balance between the rights of the employee in question and the obligation to provide a safe workplace by consulting with an expert and requiring a narrowly tailored medical exam.