Following time off to recover from a work-related injury (or from a non-work related medical condition) many employers require a fitness for duty examination before allowing employees to return to their former positions of employment. There are many good reasons for having such a policy. However, as we’ve discussed before, employers need to be mindful of the pitfalls that can exist under the Americans with Disabilities Act (“ADA”).
Under the ADA, a return to work examination must be job-related and consistent with a legitimate business necessity. Employers may conduct return-to-work examinations where they reasonably believe that an employee will be unable to do his job or may pose a direct threat because of a medical condition. Employers may also conduct medical examinations scheduled in connection with workers’ compensation actions. Employers (and their representatives) need to make sure that they are clear in their examination notice of the reason for the examination, and make sure that those reasons are consistent with a legitimate purpose under the ADA.
Three recent examples of how employer-sponsored examinations got an employer into hot water come from a recent action filed by the EEOC, EEOC v. Zachry Construction Corporation, Case No. 1:18-cv-00058-HSO-JCG, filed on February 20, 2018 in the U.S. District Court for the Southern District of Mississippi.
According to the EEOC’s lawsuit, in June 2015, Reginald White applied for a Boilermaker I position at the Chevron refinery in Pascagoula, Miss. Around the time he was hired, Zachry required White to complete a medical questionnaire. On Aug. 25, a month after White began work, the company required White to undergo a fitness-for-duty examination. After a brief examination and review of White’s medical information, the examining physician found White unable to perform his job duties, even though he had satisfactorily performed those duties for the past month. Zachry fired White the next day.
Similarly, Zachry allegedly terminated two other employees after they failed fitness-for-duty exams. According to the lawsuit, the company required Jasper Johnson to undergo a fitness-for-duty examination. During the examination, Zachry’s physician learned of a past surgery and lingering neck pain. The company allegedly refused to allow Johnson to return to work and fired him.
Lastly, the EEOC alleged that the company required a third employee to undergo a fitness-for-duty examination, and during the examination, the company’s physician learned of the employee’s past shoulder surgery and multiple shoulder dislocations. The company allegedly refused to allow the employee to return to work and then terminated him.
These examples should serve as a reminder for employers not to forget about the ADA when scheduling medical examinations. Following an employer-sponsored medical examination, it is also important to remember that information relating to medical examinations should never be kept in an employee’s personnel file. Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions.