¹ Agricultural settings have different, and often less stringent, rules regarding employment of minors.

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Fitness-For-Duty Examinations Under ADA And FMLA

One of the more frequently occurring issues in the workplace is the “fitness-for-duty examination,” and whether and under what circumstances an employer may demand it of an employee. Below we review the law regulating such an exam, including an employer’s right to “follow up” with the examining health care provider.

A fitness-for-duty examination will likely be considered a “medical examination” under the Americans with Disabilities Act (ADA), and a “medical certification” under the Family and Medical Leave Act (FMLA). The EEOC’s enforcement guidance declares that most diagnostic tests are medical examinations, including vision tests, blood pressure tests, cholesterol screen, nerve conduction tests, range of motion tests, pulmonary function tests, and psychological tests. The following are not medical examinations: screen for current illegal use of drugs, agility tests, reading ability tests, personality tests, or polygraph tests.

Job Related and Consistent with Business Necessity

Under the ADA, a medical examination must be “job related and consistent with business necessity.” This means that before an employer may demand that an employee submit to such an examination, the employer must have a “reasonable belief,” based upon objective evidence, that (1) the employee’s ability to perform the essential functions of his job may be impaired by the medical condition, or (2) the employee may pose a direct threat to himself or others in the workplace because of the medical condition.

An employer’s “reasonable belief” may be based upon information received from a person other than the employee (such as a co-worker). If an employer chooses to rely upon such information, it should consider the: (1) relationship of the “informant” to the affected employee; (2) seriousness of the medical condition; (3) motivation of the informant; (4) informant’s source of knowledge; and (5) other evidence bearing on reliability of the information.

Before an employer takes the position that an employee’s medical condition poses a direct threat to himself or others in the workplace, the employer must make an “individualized assessment” of the employee’s present ability to safely perform the essential functions of his job. The employer’s belief must be based upon reasonable medical judgment relying on the most current medical knowledge or objective evidence. To establish the “reasonableness” of the employer’s belief, the employer should document that it considered: (1) the expertise of each health care provider whose report was submitted to the employer; (2) what information was given to the health care provider about the job’s essential functions and the work environment; (3) whether the health care provider’s opinion was based upon speculation or objectively verifiable information; and (4) whether the health care provider’s opinion is contradicted by information known to or observed by the employer.

Request for FMLA Leave

An employee who requests leave under the FMLA because of his own “serious health condition” must provide medical certification of his condition. If advance notice is possible (non-emergency), the employee must provide medical certification before the leave begins or within two business days after making his request for leave. The employer is to advise the employee of the “consequences” of not providing certification, but if the certification is insufficient (see below) the employer is to give the employee a reasonable chance to cure the insufficiency. The employer may delay leave until proper certification is provided. If advance notice is not possible (an emergency situation), the employee must provide medical certification to the employer within 15 calendar days after the employer requests documentation of the serious health condition.

Return-to-Work Certification

If, when an employee wants to return to work, his employer has a reasonable belief that the employee’s present ability to perform the essential functions of the job will be impaired by a medical condition, or that he will pose a direct threat to himself or others in the workplace because of a medical condition, the employer may require the employee to obtain a fitness-for-duty examination or medical certification. However, the employer may not require that the examination go beyond what is needed to assess a particular disability or serious health condition.

Under the FMLA, an employer may not require return-to-work certification unless it previously gave notice to the employee that certification would be required upon returning to work. As stated, the employer may require certification only with respect to the serious health condition that justified leave. The return-to-work certification need only be a simple statement of the employee’s ability to return to work. If the certification is questioned, the employer’s health care provider (company physician, for example) may contact the employee’s provider, but if the certification is adequate, the employer may not require additional information nor contact the employee’s provider directly. EXCEPTION: If FMLA leave is running concurrently with worker’s compensation leave, and if comp law permits an employer to communicate directly with the employee’s provider (and this is true in most states), the employer may contact the employee’s provider directly, regardless of FMLA restrictions. Although an employer may delay reinstatement pending receipt of certification, it may not delay reinstatement while the employer questions the employee’s provider. The cost of return-to-work certification is borne by the employee, not by the employer, and the employer is not required to pay the employee for time spent in obtaining certification or to reimburse the employee for his travel costs. If an employee has no additional FMLA leave for the current year, and if he fails to provide fitness-for-duty certification or a new certification of a serious health condition, he may be terminated.

Request for Accommodation

If an employee requests accommodation under the ADA for a disability that is not known or obvious, his employer may request certification of the medical condition. However, the employer may not ask for information that is unrelated to the disability. Sufficient documentation describes: (1) nature, severity, and duration of the impairment; (2) activities that the impairment limits; (3) extent to which the impairment limits the employee’s ability to perform activities; and (4) substantiates why accommodation is required.

Documentation may be insufficient if it does not specify the existence of a disability or explain the need for accommodation. For example, the health care provider may not have sufficient expertise to give an opinion, or the information may not adequately describe the functional limitations resulting from the disability, or other facts may indicate that the provider is not credible or that the information is fraudulent. In such cases, the employer may request certification from a provider of the employer’s choosing, but the employer should first explain the insufficiency to the employee and allow the employee to provide missing information in a timely manner. In addition, the employer should consider consulting with the employee’s provider before requiring certification from its own provider.

Employer Right to Periodic Recertification

An employer typically requires an employee to provide justification for sick leave, and this is perfectly appropriate, so long as the employer has a policy or practice of requiring all employees, with or without disabilities, to do so. If an employer has reason to doubt a return-to-work certification, it may require the employee to obtain a second opinion at the employer’s expense. WARNING: under the FMLA, fitness-for-duty certification does not have to be elaborate, and the employer may not contact the provider directly unless the leave has run concurrently with worker’s comp leave, i.e., the medical condition is the result of a work injury or occupational disease. If the medical condition is not work-related, the Health Insurance Portability and Accountability Act (HIPAA) will prevent the provider from sharing information with the employer, unless the employer has obtained written consent from the employee.

Under the FMLA, may an employer require periodic updates (recertification) about an employee’s medical condition? No, if the request for leave specified a return-to-work date (close-ended). Yes, if the request for leave did not specify a return-to-work date (open-ended). Even if there is no specified return-to-work date, an employer may not require recertification more frequently than every 30 days, and if the minimum duration before “recheck” by the provider is more than 30 days, the employer may not request recertification until that time has passed, unless: (1) the employee requests extension of leave; (2) circumstances described in the previous certification have changed significantly; or (3) the employer receives information that casts doubt upon the continuing validity of the certification. Recertification is at the employee’s expense. The employer may not require a second or third opinion on recertification (unlike original certification).

Conclusion

The context of a fitness-for-duty examination must determine an employer’s course of action.

1. Worker’s Comp Injury? Is the medical condition the result of a worker’s comp injury or occupational disease? If so, then the employer may have the ability to get information directly from the employee’s health care provider. If not, HIPAA will bar the provider from sharing information with the employer, unless the employer obtains an authorization from the employee.
2. Request for Accommodation under ADA? The employer may request a medical examination only if the disability is not obvious. Even then, the examination must be job related and consistent with business necessity.
3. Reasonable Belief. If the employer has a reasonable belief that the employee may not be able to perform the essential functions of his job, or that the employee presents a risk of harm to himself or others in the workplace, the employer may require a medical examination that is job related and consistent with business necessity.
4. Leave Certification under FMLA. The employee must provide certification of a serious health condition to his employer in order to obtain leave, either before or after the leave commences. The employer may contact the employee’s health care provider only if the certification is questionable, and the provider’s ability to respond may be limited by HIPAA. Employer may require second and third opinions.
5. Recertification under FMLA. An employer may require recertification under limited circumstances. Employer may not require second and third opinions.
6. Return to Work Certification under FMLA. Employer may require if it gave earlier notice to employee. Employer may not delay reinstatement while it questions the employee’s health care provider. Employer may not require second and third opinions.

Mark M. Lawson
Eric W. Reecher

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