Fitness for Duty Warning Signs

Last week, I had the pleasure of speaking with hundreds of occupational health professionals – doctors, nurses, and administrators about return-to-work policies.  We had 90 minutes.  We could have chatted for three hours, we got so many questions!

These health care professionals were most concerned about the scope of their fitness for duty examinations for good reason.  They wanted to know that they were doing the right thing.  Some companies have fitness for duty examinations for all employees returning from leave.  Some rarely do unless they have a particular concern about a particular condition or particular employee.  Our message to them was this:  Fitness for duty exams are sticky legal wickets all the time.  Health care professionals and employers have to be careful when they require such exams and what they examine.  Below are some tips.  If you don’t have the Department of Labor’s

Below are some tips about fitness for duty exams.  If you don’t have the Department of Labor’s FMLA Employer Guide, get it, print it, put it where you can find it. Even if you’re not subject to the FMLA, this is a good resource when an employee returns to work.

When an employee is returning to work from leave, you only get to ask about what put the employee on leave. The return to work is not permission to examine everything about the employee.  You only get to look at what put the employee on leave and only if you have a reasonable belief that the employee’s current ability to perform the essential functions of the job are impaired by the medical condition or the employee poses a direct threat to the organization.

Here’s an example:  Jamal works as a laborer on a construction worksite.  He broke his arm a few weeks ago.  He is ready to return to work.  You can ask for medical documentation from his health care provider that Jamal can return to work with or without accommodations if you are concerned that Jamal may be weaker, could cause injury to his co-workers, and the position requires him to lift 50 pounds regularly.  You don’t get to require Jamal to undergo a blood and urine test.  The scope is limited to his ability to use his arm to perform the essential functions of his job.

One more example:  Jenny works as a marketing executive.  She has been out on FMLA after having a baby.  The birth did not go well, and the baby was in the hospital for several weeks.  You are concerned that Jenny might not be “all there” after this ordeal even though everyone is healthy now.  You cannot ask for a fitness for duty examination related to Jenny’s mental health unless you have some evidence – more than your gut feeling or even rumors – that Jenny is a direct threat or unable to do her job.   Of course, if you later get evidence when she returns, you can ask for such an examination.

If you do fitness for duty, do them consistently. Employers should give fitness for duty examinations on a consistent basis for similarly situated employees.  It makes sense to have a fitness for duty examination for everyone who has a heart attack who works on a production floor.  If you do such an exam for everyone who has a heart attack regardless of their position, this may be a bit more questionable.  Your receptionist who has a heart attack probably does not need a fitness for duty examination.

“Walking work comp claims” do exist, but this doesn’t mean you can always intervene or terminate. Most employers at some point in their business life have had an employee who is a danger to himself primarily because they are klutzy.  They break their arms, cause workplace accidents, and have racked up some hefty work comp benefits.  But these facts do not necessarily mean you get to put the employee through a thorough medical examination.  These facts don’t support extreme changes to his position because he is klutzy.  Your job is to try to make the worksite as safe as you can and train the employee and others to be safe.  Prescribing health care won’t do it.  You must have facts to support a reasonable belief that the employee is a direct threat to himself or others before you can force an examination.

Returning employees to work after an illness or injury can be a legal minefield.  At play are the Family Medical Leave Act, the Americans with Disabilities Act, workers’ compensation laws, and a myriad of state and local laws on top.  Certification forms, injury reports, calculating leave time, benefits – it all gets complicated.  It is downright frightening for the unwary trying to do the best thing for the employee and the organization.  When this happens to your organization, find the right resources and be sure to ask lots of questions.