FITNESS FOR DUTY EXAMS

We have received several inquiries recently regarding fitness for duty exams. The Americans with Disabilities Act (ADA) permits fitness-for-duty examinations of employees only if they are job-related and consistent with business necessity. Objective evidence is needed to make this showing.

To require these exams, an employer must have a reasonable belief based on objective evidence—not assumptions or stereotypes—that an employee's ability to perform essential job functions will be impaired by a medical condition or the employee will pose a direct threat due to a medical condition.  Leave and, as a last-resort, reassignment to an open position for which the employee is qualified must be considered as reasonable accommodations if the worker has a covered ADA disability and accommodation in the current position isn't reasonably possible. The examination should be narrowly tailored to address the exact job-related concern.

As an example, one company required an examination of a worker who said that if he had a gun, he would not still be here by now. Because that statement clearly expressed suicidal ideation, the employer sent the employee home with a fitness-for-duty form that his mental health provider had to complete prior to his return to ensure he could safely be in the workplace, or to see if he needed leave or some other accommodation.  Another example is an employee of a roofing company who has a heart condition and then has a hard time climbing ladders and is constantly sitting down.   A fitness-for-duty exam would be justified.

The ADA permits a fitness-for-duty exam upon an employee's return from medical leave when the employer has a reasonable belief that the ability to perform essential job functions will be impaired or that the employee will pose a direct threat due to the medical condition. If an employee has been out on leave for the employee's own serious health condition under the Family and Medical Leave Act (FMLA), that law lets an employer require a fitness-for-duty certification from the employee's doctor. The exam would be a condition of reinstatement, so long as the employer has a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit such certification.