Privacy Issues in the Workplace

[Please also note that there is a document published by the EEOC entitled “Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act.” ]

Moreover, the courts have upheld a public employer’s right to conduct fitness for duty examinations. In the words of the Ninth Circuit Court of Appeals:

“The government clearly has a valid concern with the productivity and stability of its work force. Citizens rightly expect the government to operate as effectively and efficiently as it can, given the diverse tasks with which it is charged. The government cannot operate with any degree of efficiency if its employees miss work…. Regular performance of [an employee’s] work is a prerequisite for… most if not all full-time governmental jobs.” 216

1. W HEN I S A F ITNESS FOR D UTY E XAMINATION A LLOWED ? According to the Ninth Circuit Court of Appeals, “ 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 .” 217 The Sixth Circuit Court of Appeals has stated the test this way: “for an employer’s request for an exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.” 218

A good rule of thumb to follow is not to request an employee undergo a fitness for duty examination unless you have specific evidence: 1) that an employee has difficulty performing one or more essential functions of his or her job; or 2) of other good cause (i.e., excessive absenteeism, poor productivity).

LCW Practice Advisor

2. W HEN I S A F ITNESS FOR D UTY E XAMINATION R EQUIRED ? In limited circumstances, the law may even mandate fitness for duty examinations. Indeed, the EEOC’s Interpretive Guidance recognizes that the ADA permits periodic physicals to determine fitness for duty or other medical monitoring if such physicals or monitoring are required by medical standards or requirements established by federal, state, or local law.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 69