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Fitness-for-duty exams: When can they be used?

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

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 requested intermittent leave for “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 FMLA. 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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{ 1 comment… read it below or add one }

Thomas Saracco June 18, 2012 at 11:05 am

10. Federal Legal Corner: Fitness for Duty Exams
In John Doe v. Pension Benefit Guaranty Corporation, 2012 MSPB 42 (3/27/12), the MSPB ruled that the Pension Benefit Guaranty’s Corporation’s ordering of an appellant to undergo a fitness for duty examination (FFD exam) and concomitant suspensions (including some time in AWOL status) was improper, as it did not fit into the narrow circumstances set forth by the Office of Personnel Management for permitting FFD exams.
In this case, in February 2009, John Doe (appellant’s real name withheld on privacy grounds and also used for females) contacted the agency’s deputy inspector general, claiming that her house had been broken into several times after she had released information to the deputy inspector general’s former colleague. This email was followed by a March 2009 email in which the appellant accused her supervisor of harassing her, and also accused the supervisor of contacting a transit official and informing him of the train number on which she had been riding the previous evening. In the same email, she also told her supervisor that the “rumor mill” had informed her that the supervisor was attempting to have her fired. Lastly, in May 2009, in a meeting, the appellant accused a new supervisor of listening in on her conversations, and informed the supervisor that she knew about her “ear piece.” The appellant followed up with the meeting by emailing the supervisor: “Hope you presented yourself well before the hidden camera.” The appellant also accused the supervisor of having a “hidden agenda.”
On May 28, 2009, the supervisor ordered the appellant to undergo a FFD exam with an agency medical consultant. The agency placed the appellant on administrative leave pending the results of the exam. The medical consultant indicated that she was suffering from a psychotic delusional disorder, and should not return to work. On June 29, 2009, the appellant’s supervisor proposed that the appellant be placed on enforced leave until she could submit medical documentation indicating that she was fit to come back to work. On August 4, 2009, the agency placed the appellant on enforced leave. On September 21, 2009, the agency rejected the appellant’s medical documentation, and on October 1, 2009, ordered the appellant to undergo a follow-up FFD exam and psychiatric evaluation. The appellant underwent the exam, and on October 13, 2009, the agency once again deemed her unfit for duty. Under the threat of AWOL, the agency gave the appellant a new ultimatum regarding subsequent mandatory psychiatric evaluations. The appellant did not comply with the ultimatum, and was placed on AWOL.
The appellant appealed her being placed on enforced leave and AWOL to the MSPB. In the initial decision, the administrative judge found that the agency did not have the authority to order the FFD exam. On appeal, the MSPB considered the question of when an agency has authority to order an FFD exam of an employee. At the outset, the MSPB deemed that this authority could derive from one of three (3) sources: 1. OPM; 2. the EEOC; or 3. an applicable collective bargaining agreement (CBA).
The MSPB cited OPM’s regulations at 5 CFR §339.301(b)-(d), in which OPM states that an agency can only order an FFD exam in three circumstances: 1. Where an individual applied for or occupies a position with medical standards or physical requirements; 2. Where an employee has applied for or is receiving continuation of pay or compensation as a result of on-the-job injury or disease; and 3. Where an employee is released from his or her competitive level in a reduction in force and the position to which the employee has reassignment rights has medical standards or specific physical requirements which are different from the employee’s previous position.
In applying OPM’s regulations to the appellant’s case, the MSPB concluded that clearly none of the three OPM conditions applied. Moreover, in looking at the EEOC regulations and whether an applicable CBA applied, the MSPB ruled that neither the EEOC, nor a bargained for rule regarding FFD exams could authorize a FFD exam where OPM had already prohibited one. Thus, the MSPB concluded that the administrative judge was correct in finding that the agency had no authority to order the FFD exam.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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