Suppose an employee stocks incoming products in the back of a retail store. He operates a forklift. The supervisor recently noticed the employee nearly dozed off on a few occasions while operating the forklift, and seems lethargic at other times. After the employee nearly runs over another worker, the supervisor calls Human Resources and asks whether the employee can be forced to obtain medical clearance to work.
Can the employer subject the employee to a “fitness-for-duty” examination? The answer depends on various legal and strategic issues.
Under the Americans With Disabilities Act (ADA) and the California Fair Employment and Housing Act, an employer may not require a current employee to undergo a medical examination unless the examination is “job-related and consistent with business necessity.” The rationale for this rule is that non-job-related medical examinations serve only to stigmatize an employee with a disability.
The term “medical examination,” according to the Equal Employment Opportunity Commission (EEOC), is “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The EEOC considers factors such as whether the test is administered or interpreted by a health care professional in a medical setting, the test’s designed purpose, the invasiveness of the examination, and the use of medical equipment.
Medical examinations may include vision tests, blood pressure screenings and cholesterol tests, blood urine, saliva, and hair analyses to detect disease or genetic markers, and psychological tests that are designed to identify a mental disorder or impairment. But tests to determine the current use of drugs, physical fitness and agility tests, polygraphs, and psychological tests designed to measure honesty, etc., are not considered medical examinations.
Job-Related and Consistent with Business Necessity
A medical examination is “job related and consistent with business necessity” when an employer “has a reasonable belief based on objective evidence that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”
A “reasonable belief” that an employee cannot perform essential job functions or poses a safety threat “requires an assessment of the employee and his [or] her position and cannot be based on general assumptions.” The employer may meet this objective standard when an employer is aware of an employee’s medical condition and has observed performance issues that can be reasonably attributed to the condition (such as with the forklift example above). Also, the standard may be met where an employer is given reliable information that an employee has a medical condition that is affecting his or her ability to perform essential job functions or indicates a direct threat.
For example, a medical examination to test the eyesight of a truck driver is job-related. If an employer knows that one of its drivers has issues with her eyesight, and observes the employee having trouble seeing, it could be reasonable for the employer to believe that the employee’s eyesight is obstructing her ability perform an essential job function—driving. A medical examination, therefore, may be warranted.
On the other hand, if an employer learns through the grapevine that an employee has breast cancer, yet her job performance is not affected in any way, an attempt by the employer to compel a medical examination would violate the ADA.
An employee is considered a “direct threat” if she presents a “significant risk of substantial harm to the health or safety of the [herself] or others that cannot be eliminated or reduced by reasonable accommodation.” An individualized assessment of the employee’s ability to safely perform her essential job functions must be conducted to determine whether an employee presents a direct threat. The following factors are relevant: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood the potential harm will occur; and (4) the imminence of the potential harm.
Brownfield v. City of Yakima
The United States Court of Appeals for the Ninth Circuit in Brownfield v. City of Yakima considered whether the City could legally require Oscar Brownfield, a police officer, to undergo a fitness-for-duty examination. Years after he returned to duty following a head injury, the City required Brownfield to undergo an examination. The City’s felt the examination was justified because Brownfield used an expletive and walked out of a meeting with colleagues; felt “himself losing control” after being taunted by a child during a traffic stop; engaged in a disruptive argument with a colleague; allegedly struck his estranged wife during an argument; and made concerning comments such as, “It doesn’t matter how this ends.”
A doctor diagnosed Brownfield with a “mood disorder” that rendered him unfit for duty. The City fired him after he refused to undergo a follow-up fitness-for-duty examination. Brownfield then filed a lawsuit claiming his termination violated the ADA. The trial court granted summary judgment for the City, and Brownfield appealed.
The Ninth Circuit held that the City’s attempt to compel a fitness-for-duty examination was consistent with the ADA. The court noted that “the business necessity standard is quite high and is not to be confused with mere expediency.” Nevertheless, the court reasoned that “prophylactic psychological examinations can sometimes satisfy the business necessity standard, particularly when the employee is engaged in dangerous work.” The court further reasoned that the City “had an objective, legitimate basis to doubt Brownfield’s ability to perform the duties of a police officer.
Fitness for Duty Following a Leave of Absence
An employer may wish to know whether an employee is medically capable of performing his or her duties following a medical leave. In addition to the ADA’s “job-relatedness” requirement, the employer must consider the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) in deciding whether such an examination would be appropriate.
Employers may require employees to undergo fitness-for-duty examinations upon return from FMLA/CFRA leave. The employer, however, must have “a uniformly-applied policy or practice that requires all similarly situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain” certification from their health care providers that they are fit for duty.
An employer that requires a fitness-for-duty report upon an employee’s return from FMLA/CFRA leave must provide advance notice of that requirement.
Because the ADA may also apply to the employee’s medical condition, employers should require physical return-to-duty examinations only when the employee’s physical capability is important to the job. The FMLA regulations give examples: “an attorney could not be required to submit to a medical examination . . . just because her leg had been amputated. The essential functions of an attorney’s job do not require the use of both legs . . . [Nevertheless,] [a]n employer may require a warehouse laborer, whose back impairment affects the ability to lift, to be examined by an orthopedist . . .”
If a fitness for duty examination reveals that an employee will be restricted from performing part or all if his or her job due to a disability, the employer must determine whether reasonable accommodation is possible. That is, the employer must determine whether adjustments to the work environment, including medical leave, would ameliorate the limitations identified during the fitness-for-duty examination. Employers should work with the employee and health care provider to determine whether accommodation of identified restrictions is feasible so the employee can perform the job’s essential function safely, effectively, and without causing undue hardship.
Employers requiring fitness-for-duty examinations should consider a variety of other issues in addition to whether the examination itself is legal. For example, the state Confidentiality of Medical Information Act (CMIA) limits the of information that a health care provider may disclose to the employer without specific authorization by the employer. The statute permits disclosure of the employee’s “functional imitations” rather than the medical history or particular diagnoses. The California Court of Appeal long ago held, in Pettus v. Cole, that doctors performing a fitness-for-duty examination and the employer could be held liable when too much information is disclosed.
In addition to the CMIA, California employees have a constitutional right to privacy in their medical information. The employer must have a sufficient interest in obtaining private information to justify and intrusion into the employee’s expectation of privacy.
Employers also may wish to consider whether requiring a fitness-for-duty examination is necessary in a particular case. For example, if the employer had no notice that the forklift driver in the above example had a “disability,” the employer likely could safely discipline or discharge the employee for falling asleep on the job, or for negligently operating the forklift and nearly causing injury.
Similarly, if an employee with no history of mental disability becomes angry or makes threats against others, the employer need not “medicalize” bad behavior by requiring a “doctor’s note.” It may be that an employee is simply a jerk rather than a person with a bona fide medical issue. Absent prior notice of a disability, the employer may simply take action consistent with its policies and any employment contract that may exist.
However, if the employer has notice that an employee has a sleep disorder, it may be dangerous to discipline the employee without any evaluation of whether accommodation is possible. The fitness-for-duty examination may be part of that process.
As shown above, requiring an employee to undergo a medical examination requires consideration of a number of laws and competing considerations. Even when the law permits employers to conduct fitness-for-duty examinations, the employer should consider whether it is wise to do so. The liability for missteps can be severe, not only under the ADA or FMLA/CFRA, but under medical privacy statutes and common law privacy principles. As always, we recommend consultation with experienced employment law counsel.