Employers with fitness-for-duty exam requirements for employees returning from medical leaves should take note of a recent decision by a federal court in Massachusetts. In that case, the Court considered whether requiring every employee returning from an extended leave to undergo a fitness-for-duty exam violated the Americans with Disabilities Act (ADA).
In that case, the plaintiffs challenged the Police Department’s practice of requiring medical and psychological examinations for all police officers who returned from extended leave, regardless of the nature of the leave or the officers’ job duties. The Police Department argued that it has a business necessity for requiring examinations prior to the officers’ return to work because police officers face unique stressors and, as a result, it needs to ensure that the officers are fully capable of performing their duties. It also argued that mental health issues are often overlooked, which for armed police officers could have serious consequences for the safety of the officers and the public, and that studies show that separation from the workplace is associated with negative impacts on mental health.
The Court rejected these arguments and found that although the fitness-for-duty exam requirement was arguably job-related, the Police Department failed to show that the requirement was consistent with a business necessity because the policy applied equally to all officers returning from an extended leave, even where there are no specific concerns about an individual’s ability to perform their job duties. The Court also found that the Police Department failed to offer any evidence that officers who were out on sick leave for three months or longer posed a safety risk.
Although blanket fitness-for-duty exams following medical leaves are not permissible under the ADA, pre-employment medical examinations are subject to different requirements pre-offer and post-offer. Prior to making an offer, employers cannot require medical exams. However, an offer can be made conditioned on a medical exam, so long as an examination is required for all employees in that job category and is not used to discriminate against a person.
An employer may withdraw a conditional job offer based on the results of a medical examination when the reason for the withdrawal is job-related and consistent with a business necessity or necessary to avoid a direct threat to health or safety. A conditional job offer may also be withdrawn if there is no reasonable accommodation that an employer can make that would not pose an undue hardship on the employer.
Employers may also require medical exams and make medical inquiries where an employee makes a request for an accommodation for a disability. Specifically, an employer may require an employee to provide sufficient documentation from a health care professional with the appropriate expertise to substantiate the disability and the need for an accommodation. Such information would include the nature, severity and duration of the impairment, the functional limitations of the impairment and the extent of those limitations. However, an employer should not ask for documentation that is not related to the request for accommodation.
Employers seeking medical documentation should also consider including a reminder to employees not to disclose genetic information by including the safe harbor language under the Genetic Information Nondiscrimination Act:
“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. Genetic information as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.” 29 U.S.C. § 1635.8(b).
Employers should keep in mind that, in addition to the ADA, there may also be additional requirements for medical examinations of employees under state or local law. Employers should take this opportunity to review their fitness-for-duty policies and other policies regarding medical exams and inquiries.
