After taking time off to have major surgery, one of my employees just returned to work. They have a strenuous job, and I’m concerned they might still be healing and could end up with a work injury. Can I send them to a fitness-for-duty exam?
Unless specific circumstances exist to support the request, employers generally are prohibited from:
• Asking an employee about their medical condition or disability; or
• Requiring an employee to undergo medical or psychological exam (aka a fitness-for-duty exam).
Employers may make such inquiries or require examinations when doing so is “job-related and consistent with business necessity” — for example when an employer has an objective concern about an employee’s ability to perform essential job functions or to maintain workplace safety.
When Fitness-for-Duty Exam May Be Appropriate
Whether a fitness-for-duty exam is allowed must be evaluated on a case-by-case basis to determine whether it is job related and consistent with business necessity, given the employee’s actual job duties.
Employers need to have objective facts — such as documented performance problems or observable symptoms — that reasonably suggest a potential medical condition is affecting the employee’s ability to perform the essential functions of the job or creating a direct safety risk to themselves or others.
A fitness-for-duty exam also may be allowed when:
• An employer receives reliable information from a credible third party about a possible medical condition;
• The employer can reasonably connect known medical conditions to observed performance issues; or
• A medical inquiry is necessary to support a request for reasonable accommodation where the disability or need is not obvious.
In limited circumstances, periodic medical examinations or monitoring required by law or tied to specific job requirements also may be permissible.
When Fitness-for-Duty Exam Not Appropriate
Employers should not use a fitness-for-duty exam to seek a diagnosis or inquire into the nature or severity of a medical condition; permissible inquiries are limited to whether the employee can perform the essential functions of their job.
Requests that extend beyond assessing fitness for duty — such as seeking a general diagnosis or broader medical history — may constitute an unlawful medical inquiry.
In addition, a fitness-for-duty examination is not appropriate in the absence of objective facts supporting a reasonable concern that the employee cannot perform their job duties or may create a safety risk.
For example, a general suspicion that an employee may be unable to perform the job solely because they recently had surgery, without objective evidence of performance problems or a safety concern, is unlikely to support a fitness-for-duty examination — especially if the employee has stated they are ready to return to full duty.
Exercise Caution
Before sending someone for a fitness-for-duty examination, employers should:
• Document the specific conduct or performance issues;
• Confirm the examination is limited to the job-related concern; and
• Make sure the medical provider is asked only to address the employee’s ability to perform essential job functions or whether they pose a safety risk.
Employers who are uncertain should proceed carefully and consult legal counsel before requiring a fitness-for-duty examination.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
