Can a Fitness-for-Duty for Continued Employment Be Illegal?

A fitness-for-duty examination is a medical evaluation requested by the employer to determine whether an employee is able to perform the essential functions of the job. Typically, the employer selects a medical provider, who will perform the examination. Although a fitness-for-duty exam is legal if properly requested and handled, there are many potential pitfalls and employers must ensure they comply with all applicable legislation and case law at all stages of the process to minimize liability.

  1. Formal Policy

    • An employer should ensure that a formal policy is developed in advance of the need for fitness-for-duty examinations. The policy should outline specific triggers for conducting the exam, which would typically include abnormal behavior from the employee or the notification of the possible need for the exam by the employee or concerned superiors and coworkers. Some employers may request a fitness for duty examination upon return from extended medical leave. The policy should specify who will conduct the examination and what the status of the employee will be during the examination process -- paid administrative leave, for example -- and how any information obtained during the process will be handled. A formal policy is essential to avoid any perception of a prejudicial or discriminatory motive.

    Focused Examination

    • The employer should ensure that medical providers are performing targeted examinations which are focused on the essential functions of the job. Testing for irrelevant information -- such as the presence of genetic conditions when that has nothing to do with the applicant's ability to lift a certain amount of weight for job-related reasons -- could violate the law. To minimize liability, the employer should have prepared documents stating the essential job functions of each classification in advance. Such documents would specify the key requirements for the position -- constant keyboarding, the ability to lift files up to 10 pounds or the requirement to operate a forklift, for example -- and could be summarized in checklist format for ease of use by the doctor.

      The employer should also provide the employee's job description and specific documentation of the reason for requesting the evaluation. The employer should also ensure that the request for evaluation is reasonable and determine whether it is prudent to first request the employee to obtain clarification or additional information from her primary care provider.

    Communication and Confidentiality

    • The employer must ensure that any medical information received from the medical provider is treated in accordance with the Health Insurance Portability and Accountability Act, or HIPAA. A provider may release medical information without the employee's authorization only if the examination was conducted at the request of the employer, relates to the "medical surveillance of the workplace" or a work-related medical condition, and the employer is mandated to take action under the Occupational Health and Safety Administration or similar legislation.

      Since most fitness-for-duty situations do not qualify, the employee's authorization is required. However, an employer may establish a policy that employees must authorize the release of such information as a condition of employment. Safeguard the information by keeping it strictly confidential and releasing information to authorized parties only in limited circumstances on a need-to-know basis. Additionally, an employer should not have any unauthorized communication with an employee's primary care provider.

    Acting on the Results

    • The medical provider will provide information to the employer about the employee's ability to perform the duties of the position, specifying whether the employee is restricted from performing any of the essential functions of the job or whether accommodations are necessary to enable the employee to do so. The employer should then conduct an "interactive process" meeting with the employee to discuss any possible accommodations.

      An employer is required to provide "reasonable accommodations" under the Americans with Disabilities Act, such as a modified work schedule or restructuring the duties of the position. Accommodations that cause the employer undue hardship may not be "reasonable" under the ADA. If so, the employer may be permitted to terminate employment. Before doing so, the employer should check that any alternatives have been thoroughly discussed, ensure any applicable disability information has been provided to the employee as necessary, and verify that all legal requirements have been fully satisfied.

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