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Workers’ Compensation: Fitness for Duty Exams following Work Injuries

By: Attorney Barry A. Dratch
A scenario often arises in Workers’ Compensation claims in which an injured worker is out of work for a period of time, and then is cleared to work by the authorized physician, either in a light duty or sedentary duty capacity. That employee attempts to return to his job, but finds the employer has some concerns about taking him back to work.   These concerns include that the employee appears to be experiencing a medical condition that potentially impairs the ability to adequately perform his or her job responsibilities.   The Employer is further concerned that the employee creates a risk of further harm to his or herself and to other employees. Under these circumstances, the employee is often asked to undergo a Fitness for Duty examination.  

A Fitness for Duty exam is a medical examination of a current employee to determine whether the employee is physically or psychologically able to perform the job after a work injury. Fitness for duty examinations are a tool utilized by employers to ensure employees are either capable of performing the essential functions of their jobs or they are not a significant risk to the health and safety of others.

Failure to pass a Fitness for Duty examination, in some circumstances, can lead to a negative job action, including termination from employment. Based on the possible negative action based on the results of the examination, the question is raised, as to under what circumstances an employer can subject the injured worker to a Fitness for Duty examination.

Employers have an affirmative duty to provide a safe working environment for employees. According to the Occupational Safety and Health Act of 1970, the employer “shall furnish to each of his employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The negligent retention of an unsuitable employee becomes a potential liability to employers. Working alongside an employee who is unfit to perform his job duties, or who is psychologically unstable, can be a threat to other employees in the workplace. 

In addition to the danger caused by working near a worker that is physically unfit to perform his position, there is also the threat of injury or worse by working alongside an employee that is psychologically unstable. Workplace violence is a significant concern for employers and employees. Employers, in these circumstances, often must take proactive measures to ensure a safe work environment for their employees. These measures may include requesting a psychological Fitness for Duty examination for an employee the employer believes poses a direct threat to other employees.

Although an employer may have legitimate concerns about allowing the employee to remain at work, refusing to allow the injured worker to work potentially violates the “perceived or regarded as disabled” protections of the Americans with Disabilities Act (ADA). Under certain circumstances, the ADA does allow employers to assess a current employee’s fitness for duty through a medical examination without running afoul of the law’s perceived or regarded as disabled protections so long as the examination is job-related and consistent with business necessity. In other words, the exam cannot be used as a way to assess whether the employee has a disability or what the severity of the medical condition may be but may be utilized to obtain disability-related information designed to help assess whether the employee can safely and properly perform his or her job responsibilities.

This standard will generally be met if the employer has a reasonable belief that:

a) the employee’s condition may prevent the employee from performing the job’s essential functions; or
b)
the employee poses a direct threat to his or her own safety or the safety of others.

The employer’s belief has to be based on facts, not on stereotypes or assumptions about the employee’s condition. If, however, the employee’s behavior and conduct did not give the employer legitimate cause for concern, and nothing suggests that the injured worker is unable to do his or her job safely, the employer would have difficulty justifying such an exam. The employer may not simply assume that anyone with a mental disability is by definition dangerous or incapable of performing the essential functions of his job. However, an employer who has legitimate, factual reasons to be concerned about the worker’s ability to do his or her job without undue risk, based on that employee’s behaviors and statements, will likely prevail.

In the recent case, decided on January 25, 2016, In the Matter of Paul Williams, Township of Lakewood, No. A-0341-15T2, the Superior Court of New Jersey, held that a New Jersey employer is permitted to give an employee a fitness for duty examination in only limited circumstances. The Court found that for a psychological or medical fitness for duty examination to be permissible under the ADA, the examination must be job-related and consistent with business necessity. The EEOHC has defined job-related and consistent with business necessity as when “an employer has a reasonable belief based upon 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 direct threat is defined as “ a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

An employer must reasonably believe through direct observation or reliable information received from credible sources that the employee’s perceived medical condition is affecting his/her performance or the employee poses a direct threat.

In another recent case decided in the U.S. Court of Appeals for the Fourth Circuit, Coursey v. University of Maryland Eastern Shore, the Court stated  .

“A business necessity must be based on more than ‘mere expediency’ and will be found to exist where the employer can ‘identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties”

Under these guidelines, an employer could require a fitness for duty examination when it has first-hand knowledge of an employee’s medical condition, has observed concerning behaviors that relate to performance of the employee’s job duties, and can rationally and reasonably attribute those concerns to the medical condition.

Based on the foregoing, a Fitness for Duty examination is not appropriate in all workers’ compensation cases in which an injured worker attempts to return to work. The employer must have a reasonable belief based upon objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition an employee will pose a direct threat due to a medical condition. If that is not the case, the employer will not be required to undergo this examination. As the results of the exam may jeopardize the injured worker’s employment, it is advised that before an injured work submits to a Fitness for Duty examination, an injured worker, through his workers’ compensation attorney, must make the determination that the employer has met these guidelines.

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