Requiring an employee to undergo a fitness-for-duty examination to show he can perform his job doesn’t mean you’re regarding him as disabled or essentially conceding he is disabled.
A new court ruling makes clear that how you handle the exam results is what matters—not that you ordered an exam in the first place.
Advice: If the examination shows the employee can perform the job, make sure you immediately reinstate him. That shows you didn’t consider him disabled.
Recent case: James Kania worked as a carrier for the U.S. Postal Service and took lots of intermittent FMLA leave for a lower-back problem. Then he had surgery that lessened his back pain.
Carriers regularly undergo route examinations, in which another employee follows them to see how they work their routes. Kania’s route examiner noted that Kania “seemed unable to walk at an acceptable pace” and took the prescription narcotic oxycodone. Kania was then placed on limited duty pending a medical examination.
The doctors who examined Kania pronounced him fit for duty, and the Postal Service immediately placed him back in his old position. But Kania sued, alleging that the Postal Service regarded him as disabled because it forced him to undergo the examination.
The 3rd Circuit Court of Appeals disagreed. It concluded merely requesting an exam is not the same as holding a belief that an employee is disabled. Plus, reasoned the court, Kania’s immediate reinstatement following the exam showed that the Postal Service obviously didn’t believe he was disabled. (Kania v. Potter, No. 09-1326, 3rd Cir., 2009)
Note: Kania had also argued that he was disabled because he received . But the court noted that was before surgery—and that Kania had remodeled two houses while supposedly disabled.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- OSHA inspectors are at your door … Are you prepared?
- Is your shining star a double agent?
- The FMLA calendar: 4 methods to counting an 'FMLA year'
- Contractor or employee? IRS launches audit blitz