An employee alleging damages for severe emotional distress in relation to a cepa claim must submit to an IME if they have placed their medical condition at issue.

The plaintiff filed a class action complaint on behalf of similarly situated persons and himself in which he alleged he was not paid overtime in violation of the collective bargaining agreement. The defendant circulated a memorandum to upper management informing them that employees should not be scheduled for more than 40 hours per week until the defendants prevailed or the plaintiff elected not to go forward. The plaintiff then filed an amended complaint which included a CEPA violation. During discovery, the defendant requested that the plaintiff submit to an IME, and the plaintiff refused to do so. In an issue of first impression, the trial court ruled that when a plaintiff alleges damages for severe emotional distress in relation to a CEPA claim and has placed their medical condition in controversy, they may be compelled to submit to an IME.

Case Law Alert - 3rd Qtr 2011