From the Hotline: Termination of Older Employee Based on Risk

Question: Is it acceptable to terminate an older employee based on higher risks of having driving accidents?

Answer: Basing a termination in whole or part on the fact that an employee is aging may be a violation of the Age Discrimination in Employment Act (ADEA) if the employee is 40 years of age or older. While most states follow the at-will employment doctrine stating that an employee may be terminated for any reason or no reason, the best practice is to base any termination on concrete issues such as poor performance and not on personal or physical attributes.

If the concern stems from the fact that the employee has not been meeting performance expectations or has been showing poor driving behavior, as compared to his or her normal behavior or compared to standards, this should be addressed with the employee directly.

If the employee’s conduct gives the employer a valid business concern that the employee is not able to perform the job safely, there may be a basis to request a fitness-for-duty exam. A fitness-for-duty exam is a medical examination of a current employee to determine whether the employee is physically or psychologically able to perform the job. For example, if the employer found the employee asleep at the wheel on multiple occasions, this might be a basis for requesting a fitness-for-duty exam. However, the employer’s request must be based on facts, not on stereotypes or assumptions about the employee’s condition. Additionally, the exam must be job-related and consistent with business necessity.

In general, when asking for a medical certification, an employer should only request the minimal amount of information needed to fulfill the requirement. If an underlying disability is revealed as a result of the exam, the employer may be subject to requirements under the Americans with Disabilities Act (ADA), including reasonably accommodating the medical condition.