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Q & A: Fit for Duty evaluations

As employers face rising Workers' Comp costs at the same time they are beginning to hire more workers, many are turning to fit for duty evaluations to avoid hiring a Workers' Comp claim and to improve return-to-work efforts. There are a number of laws that govern when and how employers can administer fitness for duty exams. Here are some Q & A's to help guide the process:

Q. Can fitness-for-duty exams be used for prospective employees?

A. Evaluating a potential employee's ability to do the job is an effective way to reduce the chance of injury. While physical agility tests can be given at any point during the application process, a medical fitness-for-duty exam can be given only after a job offer is made. Physical agility tests are not themselves a medical exam but can become one when conducted by a medical professional or if the employer measures physiological/biological responses to the performance (e.g. taking blood pressure after a lifting test). Psychological tests will often be seen as medical tests. For practical and legal reasons, most employers administer such tests post-offer and condition employment on the results of the evaluation. Typically, a company will begin with an accurate and detailed job description that includes the physical and mental essential functions of the job. Then they create exercises using similar muscle strength, flexibility, endurance, balance and other functions that replicate the requirements of the job.

Q. Can fitness-for-duty exams lead to discrimination charges?

A. As in most situations, there is always the potential to violate anti-discrimination laws so employers need to know the law and be consistent in its application. To comply with legal obligations, employers should have a written policy regarding fitness-for-duty evaluations, apply it uniformly to all entering employees in the same job category and keep medical information confidential. To comply with the Americans with Disabilities Act (ADA), employers should limit the process to determining whether the employee can perform the essential functions of the job. It's important that the test matches and does not exceed the requirements of the job.

While the Family Medical Leave Act (FMLA) prevents an employer from denying a return to work by an employee who has been on FMLA leave and presents the requisite certification from the treating physician, there is nothing that forbids a more stringent fit-for-duty exam once the employee has returned from leave, so long as the exam is job-related and consistent with business necessity in accordance with ADA guidelines.

If employers have a reasonable belief that the employee's medical condition makes it impossible to perform the job, or that there is a threat to the employee's safety or that of a co-worker, courts have upheld the right to obtain a medical examination. However, employers should tread carefully. Work with employment counsel to ensure that a mandated medical examination is not viewed as retaliatory simply because the employee took leave.

Q. What if a fitness-for-duty evaluation contradicts a doctor's release to full-duty?

A. While some opponents of using tests to evaluate returning workers argue that the results could lead to a second opinion contradicting that of the treating physician, proponents note that such evaluations can shorten disability durations and instill confidence in workers that they can return to full duty. It also can be a good monitor of the treating physician's understanding of the job requirements and open an important dialogue to avoid re-injury.