Fitness For Duty Examinationsare sometimes required by Employers in order to gauge whether an employee is able to perform essential job functions.
Federal Law (29 CFR § 1630) places several restrictions on the way the tests are conducted and what results can be used by an employer.
A fitness for duty exam can only be given after a job offer has been made an is PROHIBITED in the pre-offer stage of employment.
However, for current employees under the ADA the employer must have a "reasonable belief", based on objective evidence that:
1. The employee's ability to perform essential job functions will be impaired by a medical condition; or an employee will impose a direct threat to the safety of himself/herself or others due to current condition.
2. In rare cases this standard may be met when an employer knows about a condition and has observed performance problems.
***Note*** An employer cannot "require a medical examination or make inquiries of an employee as to whether such employees is an individual with a disability or nature of the severity of the disabilty.
However, employers are allowed to ask disability related questions and mandate mandatory medical exams if the inquiry is job related and consistent with business necessity.
What about drug testing and medication inquiries?
Since individuals who use illegal drugs are not protected by the ADA, employers may engage in testing for illegal drugs.
With regard to medication inquiries, questions regarding their are appropriate only if the employer can demonstrate that it is job related and a business necessity (i.e. DOT)
Example: An airline can require a pilot to report when they are taking prescriptions which could impair flying ability, but a fire department cannot require the same info for employees only performing administrative duties.
What if an employee applies for a transfer?
Under EEOC you must treat these employees a job applicants which "can" be based on passing a medical exam.
What if an employer believes the employee poses a threat to safety?
The employer is allowed to have the employee examined by a medical examiner of choice. The exam (Fit for Duty) is limited to determining whether the employee can perform his/her job without posing a threat to safety with or without reasonable accomodation.
Can Fit for Duty Exams be Required for return from FMLA?
Yes, under 29 CFR 825.310 the employer can ask to obtain a medical certificate regarding any serious health condition before returning to work. Addtional guidance for this area is found under the Department of Labor's "Certification of Health Care Porvider". This information should address issues such as pregnancy recovery status, chronic health conditions, lengthy In-patient treatment/hospitalizations. Additional info may include facts supporting certification, date of condition and probable duration, expected episodes/flare ups, estimate number of treatments etc.
What about return to work situations?
Under the ADA, employers may require examinations for those returning to work from medical leave if the employer has a reasonable belief that the employee's present ability will be impaired or will pose a threat to safety.
The exam is tailored to:
1. The actual medical condition that caused the absence. 2. The ability to perform the essential functions of the job.
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