An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

Courts have found that regular attendance is not an essential job function for all jobs. The Samper v. Providence St. Vincent Medical Center case, however, gives employers guidance regarding when attendance can be considered an essential job function. Specifically, attendance is an essential job function when: (1) the employee must work as part of a team; (2) the job requires face-to-face interaction with clients and other employees; or (3) the job requires the employee to work with items and equipment that are on site.

LCW Practice Advisor

B. E MPLOYEE F ITNESS F OR D UTY E XAMS This section outlines the authority of a school to require a current employee to undergo medical and/or psychological examinations for purposes of determining the employee’s “fitness for duty.” Under the ADA, an employer may require an employee to undergo a medical examination (and/or inquiry) if it is job-related and consistent with business necessity. 1469 According to the Interpretive Guidance issued by the Equal Employment Opportunity Commission (“EEOC”), the above rule permits employers to require a fitness for duty exam when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 1470 Under the FEHA, medical and psychological examinations are prohibited unless the employer can prove the following:

 For applicants: The exam is job-related, consistent with business necessity and required of all entering employees in the same job classification. 1471 In addition, FEHA regulations establish that an employer may require a job applicant to undergo a medical examination if it is directly related and pertinent to the position the applicant is applying for, or directly related to a determination of whether the applicant would endanger his or her health or safety or the health or safety of others. 1472  For current employees: The exam is job-related and consistent with business necessity. 1473

1. W HEN I S A F ITNESS F OR D UTY E XAMINATION A LLOWED ? According to the Ninth Circuit, “when health problems have had a substantial and injurious impact on an employee’s job performance, the employer can require the employee to undergo a physical examination designed to determine his or her ability to work, even if the examination might disclose whether the employee is disabled or the extent of any disability.” 1474

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 335