When Fitness-for-Duty Examinations Are Allowed

Allen Smith, J.D. By Allen Smith, J.D. April 7, 2023

​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. Here is an explainer of when such exams are allowed, including examples of what might constitute objective evidence.

A fitness-for-duty examination is a medical exam to determine whether a current employee is physically or mentally capable of performing their job duties, noted Carolyn Rashby, an attorney with Covington in San Francisco. "Because the ADA imposes strict requirements with regard to medical examinations, employers should err on the side of caution when requesting these examinations," she said.

Objective Evidence

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.

"This standard can be met if an employer knows about an employee's medical condition, observes performance issues and is reasonably able to attribute the issues to the medical condition," Rashby said.

One example of when an employer might require a fitness-for-duty exam, according to Equal Employment Opportunity Commission (EEOC) guidance, is if a crane operator becomes light-headed, out of breath and has to sit down abruptly. The employer might have a reasonable belief, based on objective evidence, that this worker will pose a direct threat while working on the construction site, and therefore may require the employee to undergo a medical examination to determine if these symptoms make the worker unfit to perform the job.

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.

Examinations may be required by another federal law or regulation—for example, the U.S. Department of Transportation mandates medical certification requirements for interstate truck drivers, noted Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich. She added that sometimes a company requires a periodic exam of all employees in a job category that is safety-sensitive, such as fork-lift driving.

That said, Rashby cautioned not to conduct an overbroad medical exam. "The examination should be narrowly tailored to address the exact job-related concern," she said.

Objective evidence would not be present if an employer overhears a manager tell a co-worker about a potential cancer diagnosis but the manager continues to perform duties in a normal, efficient manner, according to the EEOC.

The standard for fitness-for-duty examinations is different for job applicants at the post-conditional offer stage. In that circumstance, employers may require medical examinations, including fitness-for-duty examinations, without having to satisfy the "job-related and consistent with business necessity" standard so long as the requirement is uniform across candidates in the same job category, said Laura Fant, an attorney with Proskauer in New York City.

"Employers are prohibited from conducting or requiring medical examinations prior to a conditional offer of employment being made, even if the examination is related to the job," she noted.

Job descriptions that employers provide to doctors for fitness-for-duty examinations should be up-to-date. This is particularly important in light of recent layoffs and the merging of some positions, said Lenny Feigel, an attorney with Foley & Lardner in Jacksonville, Fla.

Examples of Objective Evidence

One company required an examination of a worker who said that if he had a gun, he would not still be here by now, said Lindsey White, an attorney with Shawe Rosenthal in Baltimore. "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," she said.

Objective evidence justifying a fitness-for-duty examination might be present if someone works at a roofing company and has a heart condition and then has a hard time climbing ladders and is constantly sitting down, Feigel said.

If someone must deliver a certain number of packages an hour and is constantly complaining about back pain, that may be objective evidence, he said.

If someone drives a forklift and discloses a narcolepsy diagnosis, that also may justify a fitness-for-duty exam, Feigel added.

Approach each situation on an individualized basis, Fant cautioned. "Just because two employees have the same medical condition does not mean the condition will impact their ability to perform the essential functions of their roles in the same way—or at all," she said.

Fitness-for-Duty Examination Following ADA or FMLA Leave

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 worker will pose a direct threat due to the medical condition, Rashby said. She cautioned that some states have disability discrimination laws that may contain different or stricter standards than the ADA.

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, explained John Zaloom, an attorney with Moore & Van Allen in Raleigh, N.C. And, if the employer appropriately notifies the employee ahead of time that the certification must address the employee's ability to perform the essential job functions and lists those functions, the employer may impose that requirement, he said.

"I have seen many instances where employees forged paperwork," White said. "If the employee is caught forging paperwork, I would generally recommend that the employee be terminated."



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