Under the Americans with Disabilities Act, an employer may require medical examinations or make inquiries of employees about disabilities as long as the such examinations or inquiries are job related and consistent with business necessity. The employer bears the burden of proof of business necessity and job relatedness. Frequently, issues arise when employees develop medical conditions or behaviors that could affect performance and safety, and employers tend to favor a fitness for duty exam to provide relevant information.
In Aaron Harris v. Union Pacific Railroad Co., Case No. 16-cv-11607, 2019 BL 371480 (N.D. Ill. 2019), an employee was suspended without pay while his fitness for duty exam was pending. He sued for disability discrimination, among other things, and the federal court made it clear that even otherwise proper fitness for duty exams could be illegal if the employee could show that the real purpose for the exam was not business necessity or job requirements (e.g., race, retaliation, etc.). Moreover, the court found that suspending the employee without pay while the exam was being arranged made it easier for the employee to prove that an otherwise legal exam was improper.
It also did not help the employer that the company seemed to take a less than expedient attitude toward getting the fitness for duty exam completed by providing information to the medical personnel. Those medical personnel also gave little weight to the opinion of the employee’s own physician, who opined that the employee could work with some reasonable accommodations, the standard under the ADA.
Fitness for duty exams should not be ordered lightly. Unless it is clear from casual observation that it is dangerous for the employee to work, or the employee’s own medical provider raises clear questions of the employee’s ability to perform the work safely and competently, such exams should be avoided.
In cases where an exam is ordered, an employer should move as quickly as possible to get the exam completed, cooperating fully with the medical providers. In the case of a current employee (as opposed to an applicant who has been offered a job subject to an exam), an employer should carefully evaluate whether to allow the employee to work, pay the employee during a temporary leave of absence, or assign the employee to other tasks while he or she is being evaluated. As the court stated in the case cited above, suspension without pay is an “adverse action,” which raises the stakes in any subsequent litigation.
Finally, regardless of the outcome of the fitness for duty exam, employers are obligated to engage in the interactive process to determine if there are reasonable accommodations available that would allow the employee to work. Employers should also discuss during that interactive process other positions in the company that could be available to the employee if it is not possible for him or her to return to the original job. Remember, even if the employee has no disability that qualifies under the ADA, asking for the exam creates the argument that the employer perceives a disability, and perceived disabilities are just as protected as actual ones. Fitness for duty exams, while a great tool if handled properly, are a terrible weapon against the employer if mishandled.