Can an Employer require a "Fitness-for-Duty" evaluation due to legal rx use?

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 it is used properly.  Used improperly, the fitness for duty examination will engender employee frustration and may expose an employer to liability.  

Most managers know that they have limited authority to require fitness for duty examinations, but, by the same token, they are often uncertain about the parameters of their authority. This article outlines the authority of an employer under California and federal law to require an employee to undergo medical and/or psychological examinations to determine the employee’s “fitness for duty.” It also answers some frequently asked questions about the fitness for duty process in the hopes that managers may more confidently and deftly navigate the fitness for duty labyrinth.  

WHAT LAWS AUTHORIZE FITNESS FOR DUTY EXAMS? 

A fitness for duty examination is permitted under both the Federal Americans with Disabilities (ADA) Act and the California Fair Employment and Housing Act (FEHA).  Under the ADA, an employer may require an employee to undergo a medical examination (and/or inquiry) if it is job-related and consistent with a business necessity. 42 U.S.C. § 12112(d)(4); 29 C.F.R. § 1630.14(c). According to the Interpretive Guidance issued by the Equal Employment Opportunities Commission (EEOC), this regulation permits employers to require a fitness for duty exam when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. Pt. 1630, App.  Under the FEHA, as amended by A.B. 2222 effective January 1, 2001, there is express authorization, albeit limited authorization, for fitness for duty examinations. 

California Government Code § 12940(f)(1) generally prohibits employers from requiring mental or physical examination of employees or making mental or physical inquiries. However, Section 12940(f)(2) permits employers to require “any examinations or inquiries that it can show to be job-related and consistent with business necessity.”  Having established that there is legal authority for fitness for duty examinations, requiring a fitness for duty examination may nonetheless implicate 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. The right to privacy is not absolute; rather, an employee’s right to privacy is weighed against an employer’s interest in conducting an examination. Employers should always be sensitive to an individual’s right to privacy. Doing so will go a long way to avoiding civil liability. Following the standards set below should help to avoid violating employee privacy rights.

WHEN MAY A FITNESS FOR DUTY EXAM BE REQUIRED? 

The standards for requiring fitness for duty examinations under State and Federal law now appear to be in sync: a fitness for duty examination may be required if it is job-related and consistent with a business necessity. But, what does that mean on a day-to-day basis?  According to the Ninth Circuit Court of Appeals, “when health problems have had a substantial and injurious impact on an employee’s job performance, the employer can require the employee to undergo a physical examination designed to determine his or her ability to work, even if the examination might disclose whether the employee is disabled or the extent of any disability.” Yin v. California (9th Cir. 1996) 95 F.3d 864.  The Sixth Circuit Court of Appeals has more recently stated the test this way: “for an employer’s request for an exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.” Sullivan v. River Valley School District (6th Cir. 1999) 197 F.3d 804.  

A good rule of thumb to follow is to require an employee to undergo a fitness for duty examination only if you have specific evidence: 

1) that the employee has difficulty performing one or more essential functions of his or her job; or 

2) of other good cause (i.e., excessive absenteeism, poor productivity).  

In Yin, a State tax auditor was excessively absent from work, experienced decreased productivity, and suffered a decline in the quality of her work product. The Ninth Circuit Court of Appeals held that it was proper to send the employee for a fitness for duty exam. “The government clearly has a valid concern with the productivity and stability of its work force. Citizens rightly expect the government to operate as effectively and efficiently as it can, given the diverse tasks with which it is charged. The government cannot operate with any degree of efficiency if its employees miss work . . . Regular performance of [an employee’s] work is a prerequisite for . . . most if not all full-time governmental jobs.”  In Sands v. Runyan (2nd Cir. 1997)1997 U.S. App. LEXIS 32228, an unpublished but nonetheless insightful decision, the Second Circuit Court of Appeals held that a postal clerk was properly required to undergo a fitness for duty examination where: 1) he was caught opening and reading mail and 2) co-workers submitted a letter to a supervisor indicating that they feared for their safety.  Likewise, in Deckert v. City of Ulyssses (D.Kan. 1996) 4 A.D. Cases 1569, a diabetic police officer was properly required to submit to a fitness for duty examination where the requirement was based upon sudden poor job performance and erratic behavior by the officer.  In limited circumstances, the law may even mandate fitness for duty examinations. Indeed, the EEOC’s Interpretive Guidance recognizes that the ADA permits periodic physicals to determine fitness for duty or other medical monitoring if such physicals or monitoring are required by medical standards or requirements established by federal, state, or local law. 

The following are some examples of instances when fitness for duty examinations are required:  

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

- OSHA requires that employees who wear respirators must undergo a medical examination to ensure that the employee may safely wear a respirator (29 C.F.R. § 1910.134(e); 

- Mandated drug testing for employees who operate commercial vehicles. See, e.g., 49 CFR Part 383. 

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

Assuming that an employer properly requires an employee to undergo a fitness for duty examination, there remain limits on what information the employer is entitled to receive. Under California’s Confidentiality of Medical Information Act (CMIA), California Civil Code § 56.10, et seq., unless written authorization is received from an employee, an employer is only entitled to know whether the employee can perform the essential functions of the job. The employer cannot be advised of the medical cause of an employee’s inability to perform. California Civil Code § 56.10 (c)(8)(b). 

If an employee requires a reasonable accommodation or is otherwise unable to perform the essential functions of the job, the employer is entitled to know the functional limitations on the employee’s ability to perform the job (e.g., the employee cannot stand for extended periods of time; the employee cannot lift objects weighing more than 25 pounds). Civil Code § 56.10 (c)(8)(b). If there is any doubt, an employer should not be afraid to seek clarification from the examiner concerning what an employee can and cannot do.  The bottom line is this: absent a waiver, an employer is entitled to know whether the employee is fit or unfit or otherwise limited in his or her ability to perform specific job functions. 

WHAT INFORMATION CAN THE EMPLOYER GIVE AN EXAMINER? Unless a health care professional is regularly called upon to treat a specific group of employees (e.g., a police department may regularly send officers to a particular physician for fitness for duty examinations), he or she may not have the requisite knowledge of a position to know what the essential functions of the job are, let alone make a determination that an employee can or cannot perform those functions.  

The solution to this problem is simple. Nothing in law prohibits an employer from providing a health care provider with a detailed job description, or even an opportunity to visit the job site to see how the job is performed.  In some instances a health care provider will indicate that he or she needs to review the employee’s prior medical records to conduct an effective fitness for duty examination. Under the CMIA, the health care provider can have the records if the employee authorizes the release. Civil Code § 56.10(a).  

What if the medical records are required and the employee will not sign an authorization? 

Civil Code § 56.20(b) provides that: “No employee shall be discriminated against in terms or conditions of employment due to that employee’s refusal to sign an authorization under this part. However, nothing in this section shall prohibit an employer taking such action as is necessary in the absence of medical information due to an employee’s refusal to sign an authorization under this part.” [Emphasis added.] This situation would be handled in the same manner as if the examination itself could not go forward.  

WHAT HAPPENS IF THE EMPLOYEE IS FOUND NOT FIT FOR DUTY? There is no simple answer to this question; the answer truly depends upon the circumstances of each individual case. However, there are issues which should be considered in every case.  

- Is the employee disabled? If the examiner has not indicated whether the employee is disabled (i.e., the employee is substantially limited in one or more major life activities), the employer should follow-up with the examiner on this issue.  

- If the employee is disabled, are there any reasonable accommodations which would enable the employee to perform the essential functions of his or her job? If reasonable accommodations exist, then the employer owes a duty under the ADA and the FEHA to accommodate the employee. Again, the employee should follow-up with the appropriate health care professional concerning possible accommodations. 

- If the employee is not disabled, is he or she nonetheless suffering from a serious health condition? The employer should carefully consider whether the employee is eligible for leave under the Family Medical Leave Act and/or the California Family Rights Act and whether the employee has requested time off.  

- If the employee is not disabled and not suffering from a serious health condition, yet is unable to perform the essential functions of his or her job, the employer may (depending upon the circumstances) choose to address the issue as one involving performance problems and proceed accordingly, including potentially imposing discipline. See, e.g., Sullivan, supra. 

Of course, many, if not most, public employees have a vested property interest in 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. 

Armed with the foregoing information, personnel managers should feel more confident when addressing fitness for duty issues. If, at any stage of the process, there are any questions, an employer should consult with its employment lawyer before proceeding.

Posted by:

Melanie Porter, Associate Attorney, San Diego offices from the Law Offices of Stephen Danz & Associates (877) 789-9707