FITNESS FOR DUTY EXAMS by Carolyne S. Kalson

Added on 03/21/2017 by kalsonlaw

Many times I am asked whether an employer can require an employee to submit to a “Fitness for duty exam” as a condition of continued employment. The answer is, it depends on the reason for the request. If an employee is hurt on the job and out on temporary disability through Workers’ Compensation, then a fitness for duty exam or functional capacity exam (FCE) may be common. The purpose of the exam is to determine whether the injured employee is able to return to work and perform the “essential functions of the job”. Some Workers’ Compensation carriers, will order an FCE of the injured employee. In order to be effective, the examiner must have a detailed job description and put the injured worker through a battery of tests. An employee may be returned to work with a permanent lifting restriction the employer may not be able to accommodate. In that case, the employee should be eligible for unemployment benefits. There may also be a question of fact whether or not the employee’s disability can be reasonably accommodated. The Americans with Disabilities Act (ADA) and Law Against Discrimination (LAD) both require a good-faith interactive process to determine whether an employee can perform the “essential functions of the job”.

A worker may also be required to submit to a fitness for duty exam following a protected leave under the Family Medical Leave Act (FMLA). However, the employer must notify the employee of that requirement on the paperwork approving the FMLA leave. Otherwise, an employee may allege retaliation for taking FMLA leave or disability discrimination.

I have also had cases where an employer requires an employee to submit to a psychiatric exam as a condition of employment. This can occur after an employee behaves erratically on the job or has an emotional outburst (there is always a disagreement on the “facts” between the employer and employee as to what actually occurred). Sometimes the employee may be placed on administrative leave pending the exam. My advice is usually to encourage the employee to attend the exam and fight about it later. If the employee is cleared for duty, the issue may be resolved.

In Workers’ Compensation, if an employee is temporarily disabled and cannot perform their job, they will be entitled to paid benefits. If the worker has a restriction which the employer cannot accommodate, the injured worker is still entitled to benefits under the Harbatuk case. My firm also handles Workers’ Compensation cases. Frequently, employees are not receiving the temporary compensation to which they are statutorily entitled or the wrong amount of compensation. These problems can be resolved by negotiation or motion practice, if necessary. If you have any questions about Fitness for Duty Exams, Functional Capacity Exams or your rights to compensation, I would welcome the opportunity to discuss the matter with you.