by Mindy Chapman, Esq.
We’ve all tussled with sending employees to fitness-for-duty exams when returning from an injury or illness. When are they the right decision? When do they create liability? As this case shows, it’s best to let the doctor make the right call …
Case in Point: A female emergency dispatcher for the city of Lincoln, Neb., suffered from depression. She requestedfor “six months or more” and supported her request with a doctor’s note.
In response, the city sent her for a fitness-for-duty exam by a psychiatrist. The psychiatrist determined she wasn’t 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.
She sued the city, claiming it violated her rights under the ADA and. She argued that the city had no right to perform a fitness-for-duty exam.
Result: The court tossed out her case, saying the fitness-for-duty exam was a reasonable means to ensure she could still perform a public safety job that required coolness under pressure. The decision to fire, the court said, 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.)
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 his or her 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, “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. The psychiatrist determined that the employee was unfit for the position so the employer terminated her. Had the city kept her in that position, it could have faced potential liability.
Author: Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.
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