Fitness for Duty Request After “Collapse”?

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Question

We had an employee collapse due to medical issues. We called an ambulance and they declined medical attention/transport against EMT's recommendation. He went home but did not drive. Are we able to request a doctor's note to return to work?

Answer

Yes, it appears the employer would generally be within its discretion to request a fitness for duty certification from the subject employee who "collapsed due to medical issues," as further discussed below.

By way of background, the Americans with Disabilities Act (ADA) places strict limitations (which vary at different stages of the hiring process) on an employer’s ability to ask medical questions or require medical examinations. As to current employees, employers can inquire about a current employee's medical condition or require a medical exam ONLY if the inquiry is "job-related and consistent with business necessity to do so." According to the Equal Employment Opportunity Commission (EEOC)'s Guidance on the subject, this means that the employer must have "a reasonable belief, based on objective evidence (and not speculative belief or opinion, etc.), that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition," then in either of these limited scenarios the employer can ask an employee further questions about his condition and can even request a follow up from the doctor relative to fitness for duty. The EEOC asserts that "this standard may be met when an employer knows about a particular employee's medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination." This threshold is generally not met when an employer makes speculative assumptions or draws subjective conclusions that are not based in fact or evidence. See Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA for further information and guidance.

Thus, if you have an objective reason to believe that the subject employee's ability to perform essential job functions is impaired by a known impairment, and certainly if the employer has a reasonable basis for believing that safety may be compromised as a result, then in this situation it would be permissible to make inquiries of the employee about his health and even specifically request a doctor’s note to confirm his fitness for duty and whether the employee can fulfill the job requirements with or without reasonable accommodation. In other words, if the employee has presented symptoms or reactions at work that have given the employer a reasonable belief that he may be unable to perform the essential functions of his job and/or that the employee is a "direct threat" to himself or others, the employer would arguably be within its rights to make inquiries or mandate a physical examination to confirm he is fit to work. Note that for ADA purposes, a direct threat refers to "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

As noted above, if the criteria under the ADA as noted above are met, the employer arguably would be within its rights to make inquiry of the employee, and even require that he undergo a medical examination and/or secure information from his doctor, to determine his fitness for duty (and can seek to have him discontinue his duties, or at least any duties that may be safety sensitive, such as driving, in the interim). In this situation, we make a Medical Questionnaire for Accommodation Request available for this purpose (you can access it through your portal). You should also provide a job description to the employee to give to his health care provider (and be sure the provider signs off to acknowledge having reviewed it).

If the returned documentation indicates that a disability interferes with the employee's ability to safely perform essential job functions, then the employer must engage in a dialogue with the employee to determine what reasonable accommodation may be appropriate. A "reasonable accommodation" generally refers to any change to the job, to the way the job is done, or to the work environment that allows a person with a disability who is qualified for the job to perform the essential functions of that job and to enjoy equal employment opportunities. Accommodations are considered "reasonable" for this purpose if they do not create an undue hardship for the employer or post a direct threat. Reasonable accommodation can take many forms, but does not include any adjustment that compromises safety, or violates other laws.

With respect to "undue hardship," please note that this is not something that is merely difficult or inconvenient for the employer. Rather, ordinarily to prove undue hardship an employer would have to show that the necessary accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. This is an individual determination to be made on a case by case basis. If the employer cannot provide an accommodation without undue hardship, it is not required to do so.

For more information, the EEOC's guidance at Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA is informative as to the reasonable accommodation and undue hardship analysis and we encourage you to review it. The employer should evaluate any restrictions/limitations and how long they are expected to last. If the employee cannot perform job functions, keep in mind that the employer may need to consider a job-protected leave of absence and/or reassignment to a vacant position (if there is one) that is within the employee's capabilities.

If the employee does not remit documentation, or if he does but ultimately and after interactive discussion there is no reasonable accommodation that can be made without undue hardship, then the employer is not required to provide accommodation and strictly speaking can terminate the employment relationship. That said, because any adverse action decision is so fraught with the risk of a claim for disability discrimination/failure to accommodate, the employer must ensure it has fully complied with its statutory obligations before it arrives at this conclusion.

Note that any leave required due to a serious health condition may also trigger protections under the federal Family and Medical Leave Act (FMLA) if the employee is eligible. See Fact Sheet #28: The Family and Medical Leave Act for more information on FMLA.

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Published Date:July 20, 2021

Categories: HR Question of the Month