Employee fitness for duty evaluations are permitted under the ADA and California state law. Nevertheless, it’s important for employers to take the proper steps in scheduling a fitness for duty evaluation to ensure compliance with the laws.
What medical specialty is required for the employee evaluation?
Do you need a neurologist or a neurosurgeon? Psychologist or psychiatrist? Physiatrist or podiatrist? Retaining a doctor in the right specialty is critical to obtaining a useful fitness for duty evaluation.
*Author’s Note: It is crucial that the doctor chosen to conduct the fitness for duty evaluation is the proper specialist to address the medical or psychological condition at issue. In practice, I have clients call me frequently to discuss how to identify the right doctor to conduct an employee evaluation – this is often a discussion when the employee suffers from multiple medical or psychological conditions/injuries. In one instance, a client called to schedule a fitness for duty evaluation with an orthopedic surgeon, noting that the employee at issue had exhausted paid leave, had prior back surgeries, and was complaining that she could not perform her job – particularly functions that involved repetitive movements – as they caused pain in her head, neck and shoulder. A fitness for duty evaluation was scheduled and the orthopedic surgeon opined that the employee was fully fit to perform her job without any restrictions. This was clearly a surprise to the employer who had an employee on the payroll who was unable to perform her job. After further discussion with the client, and review of the personnel file, it was brought to my attention that the employee also suffered from an autoimmune disease that may have been the source of her pain (not the prior back surgeries). Accordingly, she underwent a second fitness for duty evaluation with a rheumatologist, who was able to opine specifically on the condition that was affecting the employee’s ability perform her job functions.
Is the doctor Board Certified?
Board Certification demonstrates a doctor’s exceptional expertise in a particular specialty and serves as an important marker for a higher standard of practice.
*Author’s Note: It is important for employers to recognize that, even if they take all proper steps in complying with labor laws, a disgruntled employee may still file suit. Having an expert witness-caliber doctor to testify as to the employee’s fitness for duty, an opinion upon which any employment decisions were made, will help an employer fight a frivolous wrongful termination lawsuit.
Is the doctor familiar with fitness for duty evaluations?
The #1 FFDE complaint amongst HR Professionals is that the doctor performing the FFDE is not familiar with the evaluation process. Many doctors author reports focusing on diagnoses and treatment rather than on the issues employers need addressed, such as:
- Whether the employee has a medical or psychological condition that affects the employee’s ability to perform essential job functions,
- Whether the employee poses a direct threat to himself, herself or others, and
- Whether or not the employee needs an accommodation to perform his or her job safely and successfully.
*Author’s Note: Remember, you will be making employment decisions based on the doctor’s report. Be sure that the doctor you choose understands what he/she is supposed to do during the examination and say in the report. Fitness for duty evaluations are not independent medical examinations or workers’ compensation evaluations – not even close. Just because a doctor is experienced in performing these types of medical-legal evaluations, does not mean he/she is familiar with employee fitness for duty evaluations.
Can the doctor schedule the evaluation within your necessary time frame?
Time is of the essence in employee fitness for duty matters. Even if you are able to find a Board Certified doctor in the right medical specialty, who is familiar with the FFDE process, the doctor may not be immediately available.
*Author’s Note: This note really addresses Questions 4, 5 and 6. It is incredibly time-consuming to call multiple doctors’ offices trying to get a doctor on the phone to relay your needs for a fitness for duty evaluation. First you need to figure out which doctors to call (based on geography and specialty). Once you have a target list, you can start calling, but you then need to try and get past the doctors’ gatekeepers – the office managers and medical assistants and doctor staff. You will almost never find a doctor’s direct contact information online. If you are lucky enough to get the doctor on the phone to discuss your needs regarding the report, the questions you need answered, and the logistics of the evaluation, there is no guarantee that you will actually get the report on time. This is why our clients like our company’s ‘one stop shop’ service offering. We do the labor-intensive stuff: finding the right doctors to conduct the evaluation, training them to ensure accuracy of the evaluation and report and handling the logistics and scheduling of the evaluation (including all necessary contracts).
Can the doctor issue his/her findings in a timely manner?
Although a doctor may be readily available to conduct an evaluation of your employee, there is no guarantee that he or she will issue a report within a reasonable time frame.
Can you find the right doctor in a convenient location?
Distance from the evaluating doctor’s office is a common reason why employees refuse to attend FFDEs.
Are your cover letters to the doctor compliant with FEHA, ADA, GINA and HIPAA?
Non-compliant FFDE letters are a recipe for disaster. You must be very careful about what you ask and how you ask it when requesting an FFDE.
*Author’s Note: This question should be particularly concerning to employers as there may be liability for employer’s that don’t’ narrowly tailor their cover letters to the examining physician. See my blog regarding fitness for duty cover letters.
Will the doctor’s office be responsive to your needs?
Medical office staff is often overburdened and may not have the time or training to provide the level of customer service you deserve.
For questions about the information contained in this blog post, or to speak with CME about your employee fitness for duty needs, please contact us at 888.963.8933 or request a phone consultation here.