Fitness for Duty Exams – When Are They Appropriate?
By Sonal Shah, JD, Senior Employment Law Counsel
Published June 11, 2019
Lately, we’ve had multiple HR Source members contact us about employees who insist on coming to work, even though they seem ill or appear to be experiencing difficulties that impair their ability to adequately perform their job responsibilities. In these cases, our members have asked us if they can require the employee to submit to a fitness for duty exam. (This is for conditions unrelated to leave under the Family and Medical Leave Act (FMLA). If the request is related to the employee’s own FMLA leave, the request must be made as part of the FMLA designation process.)
In accordance with the Americans with Disabilities Act, a fitness for duty exam must be job-related and consistent with business necessity. Generally, this standard will be met if the employer has a reasonable belief, based on objective evidence, that either:
- the employee's condition prevents him or her from performing the essential functions of the job, or
- the employee poses a direct threat to his or her own safety or the safety of others.
The exam cannot be used to determine whether the employee has a disability or what the severity of the medical condition may be, but only to obtain information designed to help assess whether the employee can safely and properly perform his or her job responsibilities.
To see how this plays out in the real world, consider the following two cases:
- In the Matter of Paul Williams, Township of Lakewood, the employer asked an employee for a fitness for duty examination based solely on an anonymous letter which stated that the employee had “some sort of mental issues” and that other employees were afraid of the employee. The court overturned the Township’s decision to terminate the employee for refusing the fitness for duty examination. The court held that the Township had a duty to conduct a further investigation into the letter’s claim of alleged mental instability and corroborate such information before conditioning further employment on submission to the examination.
- In Barnum v. The Ohio State Univ. Med. Ctr, the medical center required a nurse to undergo a psychological evaluation after her coworkers raised numerous complaints regarding her behavior, including the fact that the nurse did not appear able to concentrate, which manifested itself in at least one instance of inability to perform a routine task, and the fact that the nurse had made comments that she was “worthless” and perhaps should “put a gun to my head.” Based on this information, the court found that the employer had a reasonable basis for requiring a fitness for duty examination.
HR Source members with questions on this topic should contact us at firstname.lastname@example.org or 800-448-4584.