Although employers are not required by law to maintain fitness for duty (“FFD”) policies, having one in place as part of an employee handbook can help employers keep a healthy workforce, set workplace standards, and manage employee expectations. FFD policies can be particularly important in certain work environments (such as hospitals, schools or transportation companies) in which employees are required to have particularly heightened alertness.
Sample Fitness for Duty Policy
The COMPANY is committed to maintaining a safe work environment for all employees (and customers, students, patients, visitors etc., as applicable). In order for COMPANY to maintain a safe working environment, every employee must be able to perform his or her job duties in a safe, secure, and effective manner in order to ensure that the health and safety of those around them is not jeopardized.
This policy does not limit the COMPANY’s right to take employment action under its normal disciplinary policies and procedures. Employees who fail to perform his/her job functions and/or engage in misconduct may face disciplinary action up to and including termination notwithstanding a referral for a fitness for duty evaluation.
Employees who refuse to undergo a fitness for duty evaluation may face disciplinary action, including suspension or termination. Additionally, the employee’s participation in a recommended treatment or rehabilitation program does not guarantee continued employment and may not necessarily prevent disciplinary action for violation of COMPANY policies.
Purpose of Fitness for Duty Evaluation
The purpose of a fitness for duty evaluation is to address whether an employee has a medical or psychological condition that may pose a potential threat to the employee or others in the workplace.
An employee may be required to undergo a fitness for duty evaluation (either medical or psychological) when an employer has objective evidence that an employee either:
- is unable to perform the essential functions of his or her job due to a medical or psychological condition, or
- poses a direct threat to himself/herself or others.
The grounds for seeking a fitness for duty evaluation may come from a supervisor’s own observations and/or receipt of a reliable report of the employee’s possible lack of fitness for duty from a third party. Examples of the types of impairments that may warrant the COMPANY’s request for a fitness for duty evaluation include:
- Use, possession, or influence of alcohol or illegal drugs;
- Use of legal drugs that adversely affect the employee’s ability to perform his/her job functions safely;
- Slurred or incoherent speech;
- Observed problems with vision, awareness, coordination or dexterity;
- Aggressive or threatening behavior;
- Unpredictable mood or behavioral changes;
- Drowsiness, sleepiness or other signs of fatigue; or
- Any other physical or psychological condition or behavior that affects the employee’s ability to practice his or her job functions successfully and safely.
Independent Medical Evaluator and Payment
The fitness for duty evaluation, if required by COMPANY, will be referred to and conducted by an independent, licensed health care practitioner (“Independent Medical Evaluator”) chosen by the COMPANY. The Independent Medical Evaluator will not be a treating physician of the employee. The COMPANY is responsible for paying the cost of any fitness for duty evaluation(s) required by the COMPANY. If the employee wishes to get a second opinion, or an additional evaluation from another provider, the employee is responsible for paying the cost of any additional evaluations.
Results of Fitness for Duty Evaluation
The Independent Medical Evaluator will perform the evaluation of the employee, and any necessary testing, and will provide the COMPANY with his or her medical opinion as to the employee’s fitness to perform his/her job functions. The COMPANY may use the fitness for duty evaluation results to make decisions regarding the employee’s employment status, including, without limitation, and as applicable, whether employee maintains his/her job, termination or provision of reasonable accommodation.
Confidentiality
To the extent allowed by law, the COMPANY shall protect the confidentiality of the evaluation and the results. Employee medical information provided by the employee to the COMPANY is maintained on a confidential basis in accordance with applicable law.
When conducting a mandated fitness for duty evaluation, the COMPANY may ask employee to sign consent forms that permit production of medical health information to the Independent Medical Evaluator. If the employee releases medical health information to the Independent Medical Evaluator, the employee may opt to not have the medical health information released to the COMPANY.
* This sample fitness for duty policy is intended to be a learning tool for employers and set forth the type of information which may be included in a FFD policy. It is not intended to be legal advice. Employers should consult with counsel prior to implementing a fitness for duty policy.*
