In some cases, an employer may ask a returning employee to take a fitness-for-duty examination to ensure that the employee is mentally and physically able to perform the tasks of their job. However, these fitness-for-duty exams can be intrusive and may reveal confidential information about an employee’s disability. Generally speaking, an employer’s ability to request a fitness-for-duty examination depends both on the nature of the injury that necessitated the employee’s leave as well as the specific functions of the employee’s job. When the employee’s underlying condition is one that qualifies as a “disability” under the Americans with Disabilities Act (ADA), employers are limited in their ability to require fitness-for-duty examinations.
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” If the reason for the employee’s leave was not considered a disability under the ADA, and the employee’s condition is one that could reasonably affect their ability to perform their job, then employers generally will have broad discretion in requiring a fitness-for-duty examination. However, even when an employer is able to require a fitness-for-duty examination, the employer must follow the procedural requirements outlined in 29 CFR § 825.310. This includes providing adequate notice to the employee as well as a list of the “essential functions” of the employee’s position. Of course, a fitness-for-duty exam can only be required as it relates to the specific health condition that caused the employee’s absence.
When an employee suffers from a disability as classified by the ADA that necessitates they take FMLA leave, an employer can only request a fitness-for-duty examination if the examination is related to the employee’s job and is required by business necessity. Typically, this requires that an employer be able to show that the employee’s condition either prevents them from performing the necessary functions of their job or that the employee poses a direct threat to their own safety of the safety of others. Importantly, an employer’s belief must be based on concrete facts, rather than stereotypes or assumptions about an employee’s condition. For example, an employer could not require a fitness-for-duty examination for a returning employee who suffered from debilitating depression based on the belief that all people who suffer from depression present a potential risk in the workplace.