It is quite uncanny how something you believe to be perfectly legal can have the effect of a boomerang. The question is whether a fitness for duty exam for an employee can rebound on your face as a violation of the ADA. It may not be successful in tracing back its course, but there have been instances when employees have resorted to such measures as in this particular case that came to a United States District Court. The employee was not successful in his attempt; however, it goes to show how the ADA can be utilized wrongly.
According to the ADA, “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities of an individual, a record of such an impairment, or being regarded as having such an impairment. In the above mentioned case, the defendant maintained that he was “regarded as” disabled under the ADA. A person is “regarded as” disabled under the ADA if a covered entity mistakenly believes that the person has a mental or physical impairment that substantially limits one or more major life activities, or mistakenly believes that an actual, non-limiting impairment substantially limits one or major life activities. The major life activities include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working”.
Employers must understand that their request for a medical examination by itself is not sufficient to establish that the employer “regarded” the employee as “disabled”.
Do you have an employee who is acting weirdly? Or maybe an employee who is joining work after a period of absence? You can ask for a fitness for duty exam with a medical provider. Suppose the employee fails in the test and you are terminating her service – are you violating the ADA? Not necessarily. When you request that your employee undergo a medical exam, it signifies that her performance is suffering. However, that alone cannot prove perception of a disability. Simply put, your requesting for a fitness for duty evaluation in no way means that you believe that the employee has an impairment that considerably limits one or more of her major life activities. Poor performance may be linked to other reasons that may be totally unrelated to disability or even to motivation. Under the ADA, even poor performance may not amount to a disability.
Fitness for duty test is a powerful tool an employer can legally use to determine if an employee is fit to work. It is the sure way of identifying the “wrong” worker through a comprehensive medical record review and detailed physical evaluation. Undoubtedly, a fitness for duty exam protects your employees and their coworkers from injury while also protecting you from Workers’ Compensation claims.
