There are a number of laws (state and federal) that govern employee Fitness for Duty Evaluations. There is no doubt that the application of the laws and the roles of the agencies that enforce those laws can at times be confusing. The following short summary clarifies the primary laws and agencies involved in employee medical and psychiatric evaluations:
FEDERAL LAW & AGENCY
The ADA is a federal civil rights law that prohibits private employers (with 15 or more employees), public accommodations, state and local governments, employment agencies, commercial facilities, transportation, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. It is enforced by the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC).
Under the ADA, an employer may require an employee to undergo a medical or psychiatric examination but only if the examination is “job related and consistent with business necessity” (42 U.S.C. §12112).
What constitutes a “medical examination” and what is meant by “job related and consistent with business necessity” is guided by the EEOC (see below).
The EEOC is a federal agency with the purpose of interpreting and enforcing federal laws that prohibit discrimination, including the ADA. The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law and also provides guidance as to the meaning and application of the ADA. The EEOC website is a valuable resource to employers looking for clarification on ADA regulations. (EEOC Website).
What constitutes a “medical examination” under the ADA is guided by the EEOC:
A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health. The EEOC instructs that the following factors should be considered to determine whether a test (or procedure) is a medical examination:
- Whether the test is administered by a health care professional;
- Whether the test is interpreted by a health care professional;
- Whether the test is designed to reveal an impairment or physical or mental health;
- Whether the test is invasive;
- Whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task;
- Whether the test normally is given in a medical setting; and,
- Whether medical equipment is used.
The EEOC further states that medical examinations include:
- Vision tests conducted and analyzed by an ophthalmologist or optometrist;
- Blood, urine, and breath analyses to check for alcohol use;
- Blood, urine, saliva, and hair analyses to detect disease or genetic markers (g., for conditions such as sickle cell trait, breast cancer, Huntington’s disease);
- Blood pressure screening and cholesterol testing;
- Nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpal tunnel syndrome);
- Range-of-motion tests that measure muscle strength and motor function;
- Pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out);
- Psychological tests that are designed to identify a mental disorder or impairment; and,
- Diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging (MRI).
This list, however, is not exhaustive. Additionally, there are a number of procedures and tests that employers may require that the EEOC states are generally not considered medical examinations:
- Tests to determine the current illegal use of drugs;
- Physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee’s performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (g., measuring heart rate or blood pressure);
- Tests that evaluate an employee’s ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions;
- Psychological tests that measure personality traits such as honesty, preferences, and habits; and,
- Polygraph examinations.
The EEOC states that a disability-related inquiry or medical examination of an employee may be “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that:
(1) An employee’s ability to perform essential job functions will be impaired by a medical condition; or
(2) An employee will pose a direct threat(39) due to a medical condition.”
A more in-depth discussion of the interpretation and application of “job-related and consistent with business necessity” can be found here.
The FMLA is federal law that provides certain employees with up to 12 weeks of unpaid, job-protected leave each year. The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees.
Under the FMLA, an employer may have a uniformly-applied policy that requires all similarly-situated employees (i.e., same occupation, same serious health condition) who take leave to obtain and present certification from the employee’s health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer) in the fitness-for-duty certification process as in the initial certification process (19 CFR § 825.312).
A more in-depth discussion regarding fitness for duty evaluations after an employee returns from FLMA leave can be found here.
The DOL is a federal agency charged with enforcing more than 180 federal laws, including, the FMLA. The DOL website is a great resource for employers looking for information regarding fitness for duty certification after FMLA leave. (DOL Website)
STATE LAW & AGENCY
FEHA is the state law that prohibits harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave. Although both federal (ADA) and state (FEHA) law apply to fitness for duty evaluations in California, California’s laws have historically offered greater protection to employees than federal law. A review of the differences between ADA and FEHA are set forth here.
Like the ADA, FEHA permits an employer or employment agency to require an employee to undergo a medical or psychological examination or inquire about the mental or physical health of an employee if it can show that the inquiry or examination to be conducted is job related and consistent with business necessity (Government Code § 12940).
The DFEH is the state agency (similar to the EEOC at the federal level) which enforces California’s civil rights laws, including, FEHA. The DFEH website provides guidance on the definition of disability under California law, as well as information regarding employee medical and psychiatric evaluations. (Disability Under FEHA: What You Should Know About the Law).
For more information regarding employee medical and psychological examinations, including fitness for duty evaluations, and up-to-date information regarding new judicial opinions and applicable law, see the other articles on our blog.
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