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When essential duties are at issue, OK to base medical exam on FMLA certification

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

The ADA prohibits employers from requiring many types of medical exams, but does allow exams based on business necessity.

That includes mental examinations when an employee exhibits odd or otherwise troubling behavior. For example, employees in highly stressful professions may have to show they are mentally fit for the job.

Now a new 8th Circuit Court of Appeals case allows employers to use an employee’s FMLA certification as the basis for requesting a fitness-for-duty exam if the certification asserts that the employee can’t perform an essential function of her job.

That’s especially true in high-pressure professions when an alleged FMLA serious health condition affects an employee’s ability to function while at work.

Recent case: Charlene Wisbey worked as an emergency dispatcher, receiving emergency calls and arranging for appropriate responses. Her job description included the requirement that dispatchers “function accurately while working under considerable pressure” and “think and act quickly and calmly in emergency situations.”

Wisbey began work as a dispatcher in 1979 and didn’t have any attendance or disciplinary problems until 2007. Then she began missing work, using up all her leave time. Her employer warned her about her attendance and suggested that if she needed more time off, she might qualify for protected FMLA leave. Wisbey followed the suggestion and had her doctor certify that she needed intermittent leave. He wrote that Wisbey suffered “from recurring cycle depression and anxiety which interferes with her sleep, energy level, motivation and concentration.” He recommended indefinite intermittent leave.

After reviewing the FMLA certification, managers became concerned about Wisbey’s ability to perform her stressful job. Before then, they had not known that Wisbey’s absences might be related to depression or anxiety. They ordered a fitness-for-duty exam with a psychiatrist.

During that assessment, Wisbey described her lengthy battle with depression and insomnia and stated that the emergency nature of her job exacerbated those conditions.

The psychiatrist concluded that Wisbey was unfit for her job and the employer terminated her. She sued, alleging disability discrimination.

The 8th Circuit Court of Appeals dismissed her case. First, the court reasoned that it was Wisbey herself who alleged she was unable to perform her job, as the FMLA certification said. Second, it said the medical examination was justified because Wisbey had put her fitness at issue. Because she essentially admitted that she couldn’t perform the essential functions of her job, she wasn’t protected from discharge. (Wisbey v. City of Lincoln, No. 09-2100, 8th Cir., 2010)

Final note: Wisbey apparently never asked for a reasonable accommodation. If she had, her employer would have been required to see if there were any other open positions that she could transfer to or whether it was possible to accommodate her absences in her present job.

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