By Phillip J. Ebsworth and Jennifer L. Mora
Seyfarth Synopsis: While employees often will toot their own horn, employers sometimes may have concerns about their ability to safely perform their job. If this situation rings a bell, it will be music to your ears to hear that it may be possible to request employees to undergo a medical examination to certify their fitness for duty.
Fitness for duty examinations are permitted under both the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). However, because employers are generally prohibited from inquiring about employees’ physical and mental conditions, employers must exercise caution and should not march to the beat of a different drum.
What if I Don’t Think an Employee is Ready to Return from Leave?
Under the Family and Medical Leave Act (FMLA), when an employee’s physician certifies that the employee can return to work from leave, the employer must return the employee to work. However, if the certification is incomplete or insufficient, the employer can give the employee a written notice stating what additional information is necessary.
Alternatively, as discussed by the California Court of Appeal in White v. County of Los Angeles, once the employee has returned to work from FMLA-protected leave, an employer can request an examination consistent with the ADA.
Under California’s FEHA, an employer may require an employee to undergo a medical examination to certify an employee’s fitness for duty upon the employee’s return from a non-FMLA medical leave of absence if there are reasonable safety concerns regarding the employee’s ability to perform the essential job functions. The examination must be job-related and a business necessity under the specific circumstances.
Can I Require a Fitness for Duty Examination when there are Safety Concerns?
An employer may require an employee to submit to a medical examination and obtain a fitness for duty certification if the employer has a reasonable belief based on objective evidence that the employee’s ability to perform essential job functions will be impaired by a medical condition, or that the employee will pose a direct threat due to a medical condition. If a medical examination and fitness for duty certification is sought under those circumstances, the examination must be job-related and consistent with business necessity.
Employers must have a “genuine reason to doubt” an employee’s ability to perform job-related functions. So, when considering a fitness for duty examination, it is instrumental to have evidence to drum up support for your reason to doubt the employee’s fitness. Excessive absenteeism, difficulty performing essential functions of the job, or poor productivity (particularly where outside of the employee’s usual patterns or character) may all be “cymbal-ic” of an employee being “unfit for duty.” These situations are highly fact specific and employers will have to play it by ear to see if a fitness for duty examination is appropriate in a particular circumstance.
What Can a Fitness for Duty Examination Tell Me?
Under California’s Confidentiality of Medical Information Act (CMIA), unless the employee provides written authorization, an employer can only know whether the employee is able to perform the essential functions of the job. In other words, the employer cannot be told the diagnosis or cause of an employee’s inability to perform—it is simply a pass/fail examination. However, if an employee would be able to perform the essential functions of the job with a reasonable accommodation, the employer is entitled to know the medical restrictions of the employee’s fitness for duty, such as lifting or standing restrictions, or needing an alternative schedule. Of course, if there is any doubt as to the accommodations needed, an employer can request that the employee provide additional clarification.
Workplace Solutions: Fitness for duty examinations are a useful instrument for employers, but be wary of playing solo. Your favorite Seyfarth attorney can chime in to make sure you land on the right note.
Edited by Coby Turner and Elizabeth Levy