Fitness-For-Duty Exams for Current Employees


by Aaron Clark

Clark, Aaron
aclark@mcgrathnorth.com
(402) 341-3070

When an employer receives notice of medical restrictions from an employee’s doctor, the employer will often need to consider the employee’s potential rights under the Family Medical and Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). The employer must decide whether the employee can continue to work and whether accommodations should be provided. The employee may also be entitled to leave under company policy or under the FMLA or the ADA if they are not able to continue or return to work. If the restrictions are long-term and there is an issue as to whether the employee can perform the essential functions of his or her job, a fitness-for-duty examination is one option the employer should consider.

Asking questions about an employee’s medical condition can trigger liability concerns. The employee is protected from improper inquiries under the ADA. A medical exam may only be required by the employer if it is shown to be job-related and supported by business necessity. In a recent decision by the Eighth Circuit Court of Appeals, the Court addressed a variety of legal issues arising from an employee’s depression and the employer’s use of a fitness-for-duty exam.

The employee, Charlene Wisbey, pursued claims under the ADA and the FMLA. Wisbey worked for the City of Lincoln, Nebraska as an emergency dispatcher. She suffered from multiple medical issues, including depression. She had exhausted all of her sick leave under the City’s leave policy and received a written warning. She applied for intermittent leave under the FMLA. Her doctor certified that she suffered from depression and anxiety, which interfered with her ability to sleep and also affected her energy level, motivation and concentration. On the certification, the doctor noted that she was able to perform one or more of her essential job functions but would need intermittent leave for “six months or longer.” The FMLA form did not indicate when she would be released from those restrictions.

After receiving the medical certification, the City required Wisbey to undergo a fitness-for-duty examination with a psychiatrist. The psychiatrist concluded that her depression interfered with her ability to function at full capacity. She was not fit for duty as an emergency dispatcher because she was often tired, unable to concentrate and would likely miss work due to her condition. Wisbey was placed on administrative leave and later fired in April 2007. The City advised that “for her own safety,” she could not continue in her present position.

At the outset, the Court rejected Wisbey’s ADA claim, finding that the City did not “regard her” as disabled. The Court found that the City acted based on the psychiatrist’s professional opinion that Wisbey was not fit for duty rather than upon any unfounded myths or stereotypes concerning her depression. The fitness-for-duty exam was found to be proper because the City proved that it was job-related and consistent with business necessity.

Wisbey also asserted FMLA claims for interference and retaliation. The Court noted that Wisbey’s FMLA requests were never denied, so there was no interference by the City. The Court found that her physician’s reference to “intermittent leave with no end date” did not create any rights under the Act. An employee with depression does not have the right to “unscheduled and unpredictable, but cumulatively substantial, absences, or a right to take unscheduled leave at a moment’s notice” for the rest of his or her career. The Court also found that the retaliation claim failed because Wisbey could not prove a causal connection between her FMLA application and her termination. Rather, the City’s decision was based on the fitness-for-duty exam.

The Wisbey decision demonstrates how an employer can effectively use a fitness-for-duty exam. In Wisbey’s case, the exam was related to her job. Her job functions required her to be present to answer calls and to be alert and focused at all times as people’s lives were often at risk during these communications. Thus, her condition presented a health and safety risk in the workplace. Relying upon the findings of a fitness-for-duty exam can be a legitimate, non-discriminatory reason for taking action against an employee, including termination of employment.

Medical examinations should be conducted by independent doctors. It is critical that the employer provide a complete job description to the physician identifying the essential job functions and the physical requirements. This is necessary to insure that the exam will be “job-related and consistent with business necessity.” If the restrictions are permanent, the employer should engage in the ADA interactive process to determine whether accommodations can be provided. Termination may be an option if the employee can no longer perform his or her essential job functions and potential accommodations have been fully explored and found to be unfeasable or unreasonable. As pointed out by the Eighth Circuit, if the employee’s condition poses a direct threat to safety in the workplace, termination may be the correct response.

Addressing these issues is often difficult for employers. Terms like “reasonable accommodation,” “job-related and consistent with business necessity,” and “direct threat” are not easily defined. Employers should always proceed with caution and it is strongly recommended that employment counsel be consulted during this process – especially prior to a termination.

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