ADA Psychological Evaluations in California: The Evaluation Process, the Report, and Protecting Your Client (Part 2)

In Part 1 of this guide, we covered the legal framework governing ADA and FEHA psychological evaluations in California — when they are permissible, what standards apply, and what employers are and are not allowed to do. In Part 2, we get practical: how to order an evaluation correctly, what the process involves, how to use the report, and the common mistakes that expose clients to liability.

Missed Part 1? Read it here: ADA Psychological Evaluations in California: A Legal Guide for Attorneys and HR Professionals (Part 1)

Making a Proper Referral: What to Include and What to Avoid

The quality of a psychological evaluation depends significantly on the quality of the referral. A vague or legally inadequate referral can produce a report that fails to answer the legal questions at issue — or worse, creates new liability by overstepping the bounds of what the evaluation was legally authorized to explore.

What a Proper Referral Should Include

A proper referral to a forensic psychologist for an ADA or FEHA-related evaluation should include:

1. A clear description of the specific behaviors, incidents, or functional impairments that triggered the referral — with dates and documentation.

2. The employee's job title and a description of the essential functions of the position.

3. The specific legal question or occupational question you need answered. For example: "Is this employee currently able to safely perform the essential functions of their role as described, with or without reasonable accommodation?" or "What functional limitations, if any, does this employee have that are relevant to their job duties?"

4. Relevant background records, if applicable and legally permissible to share — such as prior incident reports, documented performance issues, or prior accommodation requests.

5. Any relevant safety concerns to communicate to the evaluating psychologist.

Important: The referral question should be narrow and occupationally focused. Do not ask the psychologist to render a broad clinical diagnosis or opine on matters unrelated to the employee's capacity to perform their job. Overly broad referral questions can produce reports that disclose more than is legally permissible and expose employers to discrimination claims.

What Not to Include in a Referral

Avoid including information that could bias the evaluation or compromise its legal defensibility:

• Subjective personal characterizations of the employee ("she is difficult" or "he has always been unstable")

• Unverified rumors or secondhand accounts not documented in the record

• Statements that suggest a desired outcome for the evaluation

• Pressure — explicit or implied — on the psychologist to reach a particular conclusion

Red flag: Any referral that includes language suggesting the employer "hopes" for a particular finding, or that the psychologist "needs" to reach a specific conclusion, can be used as evidence of discriminatory intent in subsequent litigation. Keep referral communications objective and factual.What Happens During the Evaluation

Understanding the evaluation process helps attorneys and HR professionals set realistic expectations for their clients and employees — and helps ensure the process is conducted in a way that will be legally defensible.

Typical Components of a Forensic Psychological Evaluation

A thorough ADA or FEHA-related psychological evaluation typically includes some or all of the following components, depending on the referral question:

• Clinical interview: A structured interview with the examinee covering personal, occupational, and psychological history, as well as the specific concerns identified in the referral.

• Psychological testing: Standardized, validated psychological tests to assess cognitive functioning, personality, emotional functioning, symptom reporting, and response style (including validity/malingering measures). Common instruments include the MMPI-3, PAI, and cognitive assessments as appropriate.

• Records review: Review of relevant medical, psychiatric, occupational, and legal records provided by the referral source.

• Collateral information: In some evaluations, collateral interviews with supervisors or review of workplace documentation may be appropriate, with appropriate releases in place.

• Behavioral observations: Formal observations and behavioral data documented throughout the evaluation process.

How Long Does It Take?

A comprehensive forensic psychological evaluation for employment-related purposes typically involves:

• 2 to 6 hours of direct evaluation time with the examinee, often spread across one or two sessions

• Additional time for records review, test scoring, and interpretation

• Report delivery: typically within 2 to 4 weeks of completing the evaluation, depending on complexity and the volume of records

Attorneys and HR professionals should factor this timeline into case planning. If a matter involves pending litigation, a return-to-work deadline, or an accommodation decision with legal implications, communicate the timeline requirements to the psychologist at the outset.

The Examinee's Rights During the Process

Both the ADA and FEHA require that the evaluation process treat the examinee with dignity and respect. Key considerations:

• The examinee must be clearly informed — in writing — of the nature and purpose of the evaluation, who ordered it, and how the results will be used. This is not a treatment relationship, and there is no psychologist-patient confidentiality in the traditional sense.

• The examinee has the right to decline to participate, though an employer may consider a refusal in its employment decision-making, consistent with applicable law.

• The employee should be given reasonable time off from work (with pay) to attend the evaluation.

Understanding the Evaluation Report

The written report is the primary deliverable of a forensic psychological evaluation. For attorneys and HR professionals, knowing how to read, interpret, and apply the report is essential.

What a Legally Sound Report Should Address

A forensic psychological evaluation report for ADA/FEHA purposes should clearly address:

1. Background and referral question: A statement of who ordered the evaluation, the specific referral question, and the examinee's current job title and essential functions.

2. Sources of information: A list of all records reviewed, tests administered, and collateral sources consulted.

3. Behavioral observations and clinical findings: A factual description of the examinee's presentation and clinical findings.

4. Functional limitations: A clear, job-relevant description of any psychological limitations that affect the examinee's ability to perform the essential functions of their role.

5. Accommodation recommendations: If applicable, specific recommendations for reasonable accommodations that could enable the employee to perform essential job functions.

6. Direct threat analysis: If relevant, an opinion on whether the employee poses a direct threat to themselves or others, supported by objective evidence.

7. Conclusion: A direct, plain-language answer to the referral question.

What the report should NOT contain: A good forensic report for employment purposes does not include a full psychiatric diagnostic formulation beyond what is necessary to answer the referral question, treatment recommendations, or unsolicited opinions on matters outside the scope of the referral. More disclosure is not always better — and can create legal complications.

Confidentiality and Disclosure Rules

Under the ADA (42 U.S.C. § 12112(d)(3)(B)) and FEHA (Gov. Code § 12940(f)), medical and psychological evaluation results must be maintained in a confidential medical file separate from the employee's personnel file. Disclosure is strictly limited to:

• Supervisors and managers, but only to the extent necessary to implement work restrictions or accommodations

• First aid and safety personnel, if the condition might require emergency treatment

• Government officials investigating ADA or FEHA compliance, upon request

• Workers' compensation carriers, state second injury funds, and similar entities, as required by law

Common mistake: HR professionals sometimes share evaluation results with direct supervisors beyond what is minimally necessary for accommodation purposes — or include them in the general personnel file. Both practices violate the ADA and FEHA and can serve as the basis for a stand-alone discrimination claim, even if the underlying employment decision was lawful.Using Evaluation Results: Accommodations vs. Adverse Employment Actions

The results of a psychological evaluation can inform two distinct categories of employment decisions, each with its own legal requirements.

Using Results to Guide Accommodations

This is the most common and legally straightforward use of an evaluation. If the report identifies functional limitations, the employer and employee should use those findings to guide the interactive process — identifying accommodations that address the specific limitations without eliminating essential job functions.

For example, if the evaluation identifies that an employee's anxiety disorder significantly impairs their ability to manage competing deadlines in open office environments, accommodations might include:

• Modified work schedule or remote work options

• Adjusted workspace (e.g., reduced noise exposure)

• Clearer task prioritization and check-in systems

• Modified performance expectations during treatment

The California Civil Rights Department's guidance on reasonable accommodation emphasizes that the interactive process must be individualized — generic accommodations offered without reference to the employee's specific limitations may not satisfy the employer's FEHA obligations.

Using Results as Basis for Adverse Employment Action

This is where significant legal risk arises. An employer may not use the existence of a mental health condition revealed by an evaluation — standing alone — as the basis for termination, demotion, or other adverse action. Doing so is likely disability discrimination under both the ADA and FEHA.

Adverse action based on evaluation findings may be legally defensible only when:

• The evaluation establishes, based on objective clinical evidence, that the employee poses a direct threat to themselves or others that cannot be reduced or eliminated by a reasonable accommodation; or

• The evaluation establishes that the employee is unable to perform the essential functions of their position even with reasonable accommodation.

Direct threat standard: Under the ADA (29 C.F.R. § 1630.2(r)), a "direct threat" must be based on an individualized assessment of the employee's current ability to safely perform essential job functions, considering the duration of the risk, the nature and severity of the potential harm, the likelihood that harm will occur, and the imminence of potential harm. Vague risk or general concern is insufficient.

Common Mistakes That Create Legal Exposure

Based on case law and EEOC enforcement patterns, these are the most frequent errors attorneys and HR professionals encounter in ADA psychological evaluation matters:

1. Ordering an Evaluation Without Sufficient Documentation

An employer who cannot point to specific, documented, objective behavior or incidents to justify a fitness for duty evaluation is vulnerable to a disability discrimination claim. The time to build the record is before the referral is made — not after.

2. Using an Inappropriate Evaluator

Not every psychologist is qualified to conduct a forensic evaluation for employment purposes. A therapist who sees the employee for counseling is not an appropriate evaluator — they lack the objectivity, and using them would raise serious ethical and legal questions. The evaluation should be conducted by an independent psychologist with specific training and experience in forensic and occupational evaluations.

3. Failing to Follow the Interactive Process

Under FEHA, California courts have held that an employer's unilateral decision — without engaging the employee in an interactive process — is itself a violation of the statute, even if a reasonable accommodation was theoretically available. Ordering an evaluation and then acting on the results without conducting an interactive process is a common and costly mistake.

4. Asking the Wrong Question in the Referral

Referral questions that are overly broad ("tell us everything about this employee's mental health"), unduly suggestive ("determine whether this employee can ever return to work"), or irrelevant to job function invite reports that disclose more than is legally permissible and may themselves constitute evidence of discriminatory intent.

5. Mishandling Report Confidentiality

As noted above, treating a psychological evaluation report like a standard HR document — filing it in the personnel file, sharing it broadly with management, or discussing it in performance review meetings — violates both the ADA and FEHA and can expose the employer to significant liability independent of any underlying employment decision.

How to Select the Right Forensic Psychologist

The quality of a psychological evaluation — and its legal defensibility — depends heavily on the qualifications and independence of the evaluating psychologist. When selecting a forensic psychologist for an ADA or FEHA evaluation, consider the following:

Training and Credentials

Look for a licensed psychologist (Psy.D. or Ph.D.) with specific training and experience in forensic psychological evaluations. Membership in the American Psychology-Law Society (AP-LS, APA Division 41) indicates advanced training in psychology and law. The APA Specialty Guidelines for Forensic Psychology set the professional standard of practice.

Independence

The evaluating psychologist must not have a prior treating relationship with the examinee. Independence is essential to the objectivity of the evaluation and its admissibility in legal proceedings.

Experience With Employment-Related Evaluations

Forensic psychology is a broad field. Look for a psychologist with specific experience in fitness for duty evaluations, ADA accommodation evaluations, or employment-related psychological assessments — not just criminal or custody evaluations.

Report Quality and Clarity

Ask to review a sample (anonymized or redacted) report before retaining an evaluator. A good forensic report for employment purposes is clear, specific, and directly responsive to the referral question. Reports that are overly clinical, jargon-heavy, or non-responsive to the legal question at hand are difficult to use in HR decision-making or litigation.

Availability to Testify

If there is any possibility the evaluation findings will be contested — in an administrative proceeding, arbitration, or civil litigation — confirm that the psychologist is willing and available to testify. An evaluator who will not stand behind their report in court is of limited value in a contested matter.

Key Legal References

• Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

• EEOC Guidance: Disability-Related Inquiries and Medical Examinations

• EEOC: The ADA and Psychiatric Disabilities

• 29 C.F.R. § 1630.2(r) — Direct Threat Definition

• California FEHA — Government Code § 12940

• California Civil Rights Department — Reasonable Accommodation Guidance

• California Family Rights Act (CFRA) — Gov. Code § 12945.2

• American Psychology-Law Society (AP-LS)

• Specialty Guidelines for Forensic Psychology (APA)

Conclusion

ADA and FEHA psychological evaluations are powerful tools — when used correctly. For attorneys advising California employers, they provide a legally defensible mechanism to assess employee fitness, guide the interactive process, and protect against disability-related claims. For HR professionals, they provide the objective documentation needed to make difficult employment decisions with confidence.

But the legal and procedural requirements are exacting. A poorly ordered, improperly conducted, or mishandled evaluation can transform a manageable HR issue into significant litigation exposure. Getting the referral right, working with the right evaluator, and using the results within legal boundaries are the keys to making psychological evaluations work in your client's favor.

Dr. Ben Felleman, Ph.D. is a licensed California psychologist providing independent forensic psychological evaluations for attorneys and employers, including fitness for duty evaluations, ADA accommodation evaluations, return-to-work assessments, and expert witness services. Dr. Felleman works with employment attorneys, HR professionals, and general counsel throughout San Diego and California. Contact Dr. Felleman to discuss your evaluation needs.

Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. Attorneys and HR professionals should consult with qualified legal counsel regarding specific employment law questions.