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You can force ‘Fitness for duty’ exam with good reason

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in Compensation and Benefits,Discrimination and Harassment,FMLA Guidelines,Human Resources

It certainly shouldn’t be a routine practice, but you can require employees to undergo “fitness for duty” examinations. The trick is knowing exactly when and why such an exam is legal—or not.

Ask for an exam if it is job-related and consistent with business necessity. Some legitimate rationales include:

  • You need to know what limitations an employee has in order to make requested accommodations (or decide whether the employee is actually disabled).
  • You fear an employee may be a threat to himself or others. Document exactly why you want the examination and how it relates to a legitimate business need.

Recent case: Gary Ward worked as a research chemist for Merck & Company for about five years. He abruptly resigned following an emergency room visit precipitated by fears that someone at the company was monitoring his computer use.

Merck asked him to reconsider his resignation, and he came back to work. Shortly after, he had an “episode” in the company cafeteria and took FMLA leave for psychological reasons. After treatment and starting medication for schizophrenia and other mental disorders, Ward returned to work with no restrictions. But his behavior became increasingly bizarre. He became withdrawn and his work performance deteriorated. Co-workers complained that Ward wouldn’t look at them when they spoke to him, answered their questions in monosyllables and walked around “like a zombie.”

Managers worried that Ward wasn’t well and asked him to undergo an evaluation to see if he was fit for work. He refused and was fired.

Ward filed an ADA lawsuit, alleging Merck had no legitimate business reason for its request. The court tossed out the case, reasoning that his behavior and declining performance cast doubt on Ward’s ability to do his job. He was unable to show that Merck was motivated by disability discrimination. (Ward v. Merck & Company, No. 06-1270, 3rd Cir., 2007)  

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