TOP TIP: Be Thoughtful When Requiring Fitness For Duty Examinations

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A recent case from the U.S. Court of Appeals for the Fourth Circuit highlights the need for employers to be extremely careful in requiring employees to undergo fitness for duty examinations, even when such requirements may appear to be logical.

Background of the Case. In EEOC v. McLeod Health, Inc., the employee worked as the editor of the company newsletter involved traveling to five company sites over a 100-mile area to interview other employees. She had congenital bone issues that impacted her mobility and stability, but did not affect her ability to perform her job for almost 30 years.

Then, within a four-month period, the employee fell three times, once at work. Although the employee had fallen multiple times over the years without reaction from the employer, the employee’s manager reported the most recent falls to the Occupational Health department. Based on the report of falls, the employee’s job description and its own records of the employee’s health issues, Occupational Health ordered a fitness for duty examination in order to ensure that the employee could safely travel between locations. As a result of the exam and a follow-up functional-capacity exam (in which a physician evaluates whether the employee is physically capable of performing her job), the physician recommended that the employee be restricted to traveling no more than 10 miles from her main office, use an assistive device such as an electric scooter, and be given a parking space without a curb. Although the employee did not believe she needed any accommodations, she thought she was required to submit an accommodations form and requested the same parking space, help with selecting an assistive device, a new desk chair, and limitations on walking and standing “as much as possible.”

Based on the physician’s conclusions and the employee’s request, the employer determined that the employee could not perform her essential job function of traveling between locations. Accordingly, she was placed on leave and then subsequently terminated. The EEOC sued the employer, claiming among other things that the medical exam was unlawful under the Americans with Disabilities Act as there was a lack of objective evidence that it was necessary.

The Court’s Ruling. The Fourth Circuit agreed with the EEOC. Under the ADA, a medical exam must be job-related and consistent with business necessity. The Fourth Circuit explained that, to meet this requirement, the employer must reasonably believe, based on objective evidence that either the employee is impaired in performing an essential job function or that the employee will pose a “direct threat” to the safety of herself or others. Although the employer argued that the employee posed a direct threat to herself in navigating between and within locations, the Fourth Circuit questioned whether this navigation was actually an essential job function. It was not mentioned in the employee’s job description, and there was evidence that the employee could conduct interviews and collect other information by phone.

The Fourth Circuit also found a question as to whether the employer had a reasonable belief that the employee actually posed a direct threat to her own safety, given that she had performed the job for 28 years, with limited mobility and occasional falls. Moreover, the only fall she had at work in recent months caused almost no injury.

Lessons for Employers. Given the employee’s falls both in and out of the workplace, many employers might assume that a fitness for duty exam would be a logical requirement. But this case contains the following lessons for employers to think about before requiring a fitness for duty exam:

  • Thoughtfully consider the essential job functions of the employee’s position. Analyze the job function in question to assess whether it is accurate and whether it is truly essential. In this case, for example, the employer asserted that navigating between and within locations was an essential function – but the real function may have been the gathering of information.
  • Consider whether changing technologies and needs may affect the essential job function. Perhaps at one time for this employee, traveling between locations may have been the only real way to gather the information needed to prepare the newsletter. However, given developments in communication technologies, that may no longer be the case.
  • Ensure that there is support for the assessment that the job function is essential. We discussed some of the ways to make this showing in our May 2018 E-Update.
  • Determine if there has been an evident change in the employee’s physical or mental health. In this case, the employee had been performing the job for decades with the same limitations and occasional falls. There did not appear to be any real change in her condition that would warrant new concern.