Employers May Require Fitness for Duty Evaluations in Some Circumstances, but Must Avoid Violating "Perceived or Regarded as Disabled" Protections

10 January 2011 Labor & Employment Law Perspectives Blog
Authors: Christopher G. Ward

Not infrequently, employees miss work claiming to have been ill, particularly during these winter months, and present vague doctors’ notes upon their return, causing supervisors to wonder if the employee was really out sick or instead took a paid “mental health day.” Occasionally however, an opposite scenario will occur — an employee insists on coming to work, even when he or she appears ill or to be experiencing a medical condition that potentially impairs the ability to adequately perform his or her job responsibilities. In such circumstances, employers may be concerned that the employee creates a risk of infection of other employees, or potentially worse depending on the employee’s job responsibilities.

While the employer may have legitimate concerns about allowing the employee to remain at work, refusing to allow the employee to work potentially implicates the “perceived or regarded as disabled” protections of the Americans with Disabilities Act and/or similar state laws. Under certain circumstances, the ADA does allow employers to assess a current employee’s fitness for duty through a medical examination without running afoul of the law’s perceived or regarded as disabled protections so long as the examination is job-related and consistent with business necessity. In other words, the employer may require a medical opinion on whether a current employee is currently able to capably and safely perform his or her job-related functions.

However, employers should take care before considering this option; to legally require an employee to submit to a fitness for duty examination, the employer must have a reasonable belief, based on objective evidence, that either 1) the employee’s ability to perform his or her essential job functions is impaired by a medical condition or 2) the employee poses a direct threat to safety of others due to a medical condition. The exam cannot be used as a way to assess whether the employee has a disability or what the severity of the medical condition may be but may be utilized to obtain disability-related information designed to help assess whether the employee can safely and properly perform his or her job responsibilities.

Under these guidelines, an employer could require a fitness for duty examination when it has first-hand knowledge of an employee’s medical condition, has observed concerning behaviors that relate to performance of the employee’s job duties, and can rationally and reasonably attribute those concerns to the medical condition. An example of such a circumstance might be after a forklift driver crashes into a warehouse shelf, narrowly missing a co-worker, and thereafter explains that he had a sudden problem with his vision, a problem that has happened to him several times before, but never at work. In that circumstance, the employer has objective evidence to believe that the employee poses a direct threat to the safety of others in the course of performing his duties and could, therefore, require the employee to submit to a fitness for duty examination. By contrast, if a supervisor overhears a medical records clerk telling co-workers about her serious heart condition that requires constant monitoring and careful medication, but has never observed any type of performance problem with this employee, the employer could not require a fitness for duty examination because the evidence does not indicate either a direct threat to the safety of others or an impairment of the employee’s ability to perform her job responsibilities.

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