Fitness-for-Duty Evaluations: Legal Considerations and Requirements

Am I required to take a Fitness for Duty Exam in California?  

By Melanie Porter, Associate Attorney from Stephen Danz & Associates:  

The fitness for duty examination is an invaluable tool for promoting a safe and productive workplace when used properly. Used improperly, these employee medical examinations can lead to frustration and potential liability for employers.  

Most managers are aware that they have limited authority to mandate fitness for duty examinations, yet they may be unsure about the specifics of that authority. This article outlines the framework under California employment law and federal law governing an employer's ability to require employees to undergo medical and/or psychological assessments to determine their “fitness for duty.” Additionally, it addresses some frequently asked questions about the fitness for duty process, helping managers navigate this complex issue with confidence.  

WHAT LAWS AUTHORIZE FITNESS FOR DUTY EXAMS?  

A fitness for duty examination is allowed under both the Federal Americans with Disabilities (ADA) Act and the California Fair Employment and Housing Act (FEHA). Under the ADA, an employer may necessitate an employee to undergo a medical examination (and/or inquiry) if it is related to the job and necessary for the business. 42 U.S.C. § 12112(d)(4); 29 C.F.R. § 1630.14(c). According to the guidance provided by the Equal Employment Opportunities Commission (EEOC), this regulation enables employers to request a fitness for duty exam when there’s a need to confirm whether an employee can perform the essential functions of their job. 29 C.F.R. Pt. 1630, App. Under the FEHA, which was amended by A.B. 2222 effective January 1, 2001, there is express but limited authorization for fitness for duty examinations.  

California Government Code § 12940(f)(1) generally prohibits employers from requiring mental or physical examinations of employees or making such inquiries. However, Section 12940(f)(2) allows for examinations or inquiries that can be shown to be job-related and consistent with a business necessity. Thus, while there is legal authority for fitness for duty examinations, these requests may also infringe upon an employee’s right to privacy.  

Both the United States Constitution and the California Constitution recognize an individual’s right to privacy. U.S. Const., V Amend.; Cal.Const. Art. 1, Sec. 1. This right is not absolute; it must be balanced against an employer’s legitimate interest in conducting such examinations. Employers must be sensitive to privacy concerns to avoid civil liability. Following the guidelines discussed below will aid in respecting employee privacy rights.  

WHEN MAY A FITNESS FOR DUTY EXAM BE REQUIRED?  

The criteria for demanding fitness for duty examinations under State and Federal laws appear to align: such an examination can be required if it is job-related and necessary for the business. But what does this mean in practice? According to the Ninth Circuit Court of Appeals, “when health problems significantly affect an employee’s job performance, the employer may require that employee to undergo a physical examination to assess their ability to work, even if it may reveal whether the employee is disabled or the extent of the disability.” Yin v. California (9th Cir. 1996) 95 F.3d 864. More recently, the Sixth Circuit Court of Appeals defined the criterion as follows: “for an employer’s request for an exam to be justified, there must be considerable evidence that raises a reasonable person’s concern about the employee’s capacity to perform their job.” Sullivan v. River Valley School District (6th Cir. 1999) 197 F.3d 804.  

A good rule of thumb is to require an employee to undergo a fitness for duty examination only if there is specific evidence such as:  

1) the employee has trouble performing one or more essential functions of their job; or  

2) other valid reasons (like excessive absenteeism or poor productivity).  

In Yin, a State tax auditor was frequently absent, saw a drop in productivity, and had a decline in the quality of her work. The Ninth Circuit upheld the decision to require her to undergo a fitness for duty exam, illustrating that public sector employers have legitimate concerns about workforce productivity and stability. In Sands v. Runyan (2nd Cir. 1997) 1997 U.S. App. LEXIS 32228, a postal clerk was accurately required to undergo such an examination due to behaviors that raised safety concerns. Similarly, in Deckert v. City of Ulysses (D.Kan. 1996) 4 A.D. Cases 1569, a diabetic police officer’s sudden poor job performance warranted a fitness for duty assessment. In certain situations, the law may mandate fitness for duty examinations as the EEOC recognizes that the ADA permits regular physicals to assess fitness or for medical monitoring when mandated by applicable laws.  

The following are examples of circumstances necessitating fitness for duty examinations:  

- OSHA mandates that employees exposed to specific hazardous substances be monitored periodically (29 C.F.R. § 1910.1001(d)(e));  

- OSHA requires medical examinations for employees using respirators to ensure safety (29 C.F.R. § 1910.134(e));  

- Drug testing is mandated for employees of commercial vehicles (see, e.g., 49 CFR Part 383).  

WHAT INFORMATION IS AN EMPLOYER ENTITLED TO RECEIVE FOLLOWING A FITNESS FOR DUTY EXAMINATION?  

If an employer appropriately requires an employee to undergo a fitness for duty examination, limitations persist regarding the information that can be disclosed. Under California’s Confidentiality of Medical Information Act (CMIA), California Civil Code § 56.10, et seq., unless an employee provides written consent, an employer is only entitled to know if the employee is capable of performing the essential functions of their job. The employer does not receive information about the medical reasons for an employee's inability to perform their duties (California Civil Code § 56.10 (c)(8)(b)).  

If an employee requires reasonable accommodations or is otherwise incapable of fulfilling their job responsibilities, the employer is entitled to know the specific functional limitations (for instance, the employee cannot stand for extended periods or lift weights over 25 pounds). Civil Code § 56.10 (c)(8)(b). Where there is any uncertainty, employers should not hesitate to seek clarification from the examiner about what an employee can or cannot do. Essentially, unless there’s a waiver, an employer can ascertain whether the employee is fit, unfit, or has limitations impacting their capacity to perform certain job functions.  

WHAT INFORMATION CAN THE EMPLOYER GIVE AN EXAMINER?  

If a health care professional regularly evaluates a particular group of employees (e.g., a police department may regularly send officers for fitness for duty examinations to one physician), that physician may not have sufficient knowledge of the job’s essential functions.  

To remedy this, employers may share detailed job descriptions with health care providers and even allow them to visit the job site. In some cases, healthcare providers may require access to an employee’s prior medical records to conduct an effective fitness for duty examination. Under the CMIA, this can occur if the employee permits the release. Civil Code § 56.10(a).  

What occurs if medical records are necessary and the employee declines to sign the authorization?  

Civil Code § 56.20(b) states: “No employee shall be discriminated against in employment terms or conditions due to refusal to sign an authorization under this part. However, this section does not prevent an employer from taking actions warranted in the absence of medical information due to the employee’s refusal to sign an authorization.” This scenario should be treated as if the examination cannot proceed.  

WHAT HAPPENS IF THE EMPLOYEE IS FOUND NOT FIT FOR DUTY?  

The answer to this question is not straightforward; it varies based on individual circumstances. However, several considerations should remain consistent in every case:  

- Is the employee disabled? If the examiner hasn’t clarified whether the employee is disabled, the employer should follow up with the examiner regarding this matter.  

- If the employee is disabled, what reasonable accommodations could allow the employee to perform their essential job functions? If accommodations are available, the employer is obligated under the ADA and FEHA to provide them. Follow-up with the appropriate health care professional is advisable concerning feasible accommodations.  

- If the employee is not disabled, do they still have a serious health condition? The employer should carefully evaluate the employee's potential eligibility for leave under the Family Medical Leave Act and/or the California Family Rights Act and consider any requests for time off.  

- If the employee is neither disabled nor suffering from a serious health condition but cannot perform essential job functions, the employer may (depending on the context) address the situation as a performance issue, potentially resulting in disciplinary action (see, e.g., Sullivan, supra).  

It is important to note that many public employees have a vested property interest in their continued employment and are entitled to due process (see, e.g., Bostean v. Los Angeles Unified School District (1998) 63 Cal.App. 4th 95, 73 Cal. Rptr.2d 523).  

With this information at hand, personnel managers should feel more empowered when addressing fitness for duty matters. Should any questions arise during the process, it’s wise for an employer to consult with their employment attorney before proceeding.