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Fitness-for-Duty Exams: When Can They Be Used?

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in Case In Point,Discrimination and Harassment,FMLA Guidelines,Human Resources

We’ve all tussled with fitness-for-duty exams. When are they the right decision? When do they create liability? As a court warned last week, when you need assurance, it’s best to let the doctor make the right call …

Case in Point: Charlene Wisbey, an emergency dispatcher for the city of Lincoln, Neb., suffered from depression. Wisbey requested intermittent leave for “six months or more.” She supported her request with a letter from her doctor who stated she was “unable to do the essential elements of her job.”

In response, the city sent her for a fitness-for-duty examination by a psychiatrist. The psychiatrist determined Wisbey was not fit to be an emergency dispatcher because she could not perform the essential elements of her job, including responding to life threatening situations. Thus, the city fired her.

Wisbey sued the city, claiming it violated her rights under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). She argued that the city had no right to perform a fitness-for-duty exam.

The result: A lower court tossed the case out and the appeals court agreed. It said the fitness-for-duty exam was a medical necessity because it was a reasonable means to assure that Wisbey could still perform a public safety job that required coolness under pressure.

The court noted Wisbey was simply not fit to perform the essential functions of her job and the decision to fire her was “not based on any myths or stereotypes about being disabled.”  

The court also pointed to the FMLA request for “intermittent leave for six months or longer” and said the city did not violate that request because it never denied it. Plus, the FMLA expects employees to return to work at the end of the leave, it’s not a guarantee of indefinite leave. (Wisbey v. Lincoln, 8th Cir., 7/6/10)

3 Lessons Learned…Without Going to Court 

  1. Use fitness-for-duty exams. Don’t be afraid to use them if you reasonably need assurance that an employee is qualified to do the essential functions of their job. When it comes to safety, better safe than sorry.
  2. But, only when it’s a medical necessity. The court determined the city had a legitimate reason for calling the doctor in. As the court said, “As a dispatcher, Wisbey played an essential role in emergency functions and her position required her to be present to answer calls and [to be] alert at all times. In this position, people's lives are often at risk and a dispatcher's ability to focus and concentrate at all times is essential to adequate job performance.”
  3. Take action. In this case, the psychiatrist determined that the employee was unfit for the position so the employer terminated her. Had they kept her in that position there could potentially have been liability.

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