An agency may make a medical inquiry regarding the severity of an employee’s health condition if it has a reasonable belief that “an employee will pose a direct threat due to” the condition. In this case, the Merit Systems Protection Board (the Board) determined that the agency did not have a reasonable belief that its employee posed a direct threat and, therefore, wrongfully requested medical information as a condition to allow him to return to work.
The appellant, an employee at the United States Postal Service, left work after experiencing an anxiety attack and asthma attack in December 2016. Soon after, he saw his primary care physician and clinical psychologist for evaluation and clearance to return to work. In January 2017, the appellant’s psychologist sent a note to the agency stating that appellant had sufficiently recovered from his health incident to return to work without restrictions. The appellant did not hear back from the agency, and reported to his duty station a few days later. Upon returning, a supervisor informed him he had to leave because he had not been cleared to work. The appellant filed the instant Board appeal alleging that the agency constructively suspended him. The agency then informed him that his return-to-work letter was deficient because it did not state whether the appellant was a threat to himself or others. The appellant’s psychologist subsequently submitted notice to the agency that the appellant was not a threat to himself or others.
On appeal, the administrative judge issued an initial decision that it lacked jurisdiction because the appellant failed to show that his absence from work was involuntary. The appellant filed a petition for review.
On review, the Board examined whether the agency constructively suspended the appellant to determine whether it had jurisdiction over the appeal. A constructive suspension is premised on the proposition that an absence that appears to be voluntary is not actually so. To demonstrate that an absence was not voluntary, the appellant must show: (1) he lacked a meaningful choice; and (2) it was the agency’s wrongful actions that deprived him of that choice. Because constructive suspensions are initiated without notice, if an appellant establishes that a constructive suspension occurred, the Board will reverse the agency’s action on due process grounds.
The Board found the first prong of the constructive suspension test—lack of meaningful choice—was clearly met because the agency made the decision not to permit the appellant to return after he submitted his first medical note. Addressing the second prong, the Board stated that “when an employee voluntarily takes leave, an agency may properly refuse to allow the employee to resume working if the employee does not satisfy the agency’s conditions for returning to work.” But, if the agency’s conditions for returning to work are wrongful, then the employee’s absence following the agency’s refusal to allow him to return to work may be a constructive suspension.
Under the Rehabilitation Act, an agency may “make a medical inquiry regarding . . . ‘the nature or severity of the disability’ only when such inquiry or examination ‘is shown to be job-related and consistent with business necessity.’” Typically, medical inquiry is “job-related and consistent with business necessity” if an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”
Here, the agency alleged that its inquiry regarding whether the appellant was a risk to himself or others was not wrongful because his absence was due to a mental health condition and because of appellant’s reported discord with supervisors.
The Board rejected the agency’s argument. An employee poses a “direct threat” as a result of a medical condition when he poses “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.” Simply because an employee’s absence is related to a mental health condition does not suggest that he is likely to do harm. Instead, the determination of whether an individual with a mental health condition poses a direct threat must be based on “specific behavior.”
The agency also identified two issues appellant had with supervisors as reasons for requiring additional medical documentation. The first was an Office of Workers’ Compensation Programs Form submitted by the appellant indicating that working with a particular supervisor contributed to his anxiety disorder. The second was an alleged workplace disagreement between the appellant and his supervisor on the day that he left work due to asthma and anxiety attacks. The Board stated that both were insufficient bases for requiring additional medical documentation, holding that difficulties with a previous supervisor and an alleged verbal disagreement without any evidence of threatening behavior do not evidence a direct threat.
The Board held, then, that the agency’s requirement that the appellant produce additional medical documentation to return to work was wrongful. As a result, the agency constructively suspended the appellant and the appellant did not receive due process for the constructive suspension. For these reasons, the Board reversed the initial decision, reversed the agency’s constructive suspension, and found that the Board had jurisdiction over the appeal.
Find the full case here: Martin v. U.S. Postal Service.