When Can an Employer Require a Fitness for Duty Exam?

As a New Jersey employment lawyer, I have had numerous clients tell me their employer has asked or required them to undergo a fitness-for-duty examination.  However, anti-discrimination laws limit when an employer has the right to send an employee to a medical exam.

Protection Under Anti-Discrimination Laws

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both prohibit employers from sending employees for a fitness-for-duty exam unless the exam is “job-related” and “consistent with business necessity.”

When can an employer require a medical exam?More specifically, before it can request such an exam, your employer must have a reasonable belief, based on objective evidence, that either (1) your ability to perform one or more essential function of your job will be impaired by a medical condition, or (2) you will pose a direct threat to yourself or others due to a medical condition.

Ordinarily, if your employer does not meet one of those two requirements, then requiring you to undergo a medical exam, or even inquiring about your medical condition, would constitute disability discrimination or otherwise violate the ADA and the LAD.

In this context, medical examinations include physical and psychiatric exams, as well as things like testing blood, urine, saliva or hair, physical and psychological testing, and a wide range of diagnostic procedures.  However, they do not include drug tests, or tests such as polygraphs that are intended to detect an employee’s honesty .

Even when a medical examination is warranted by the ADA and the LAD, the employer is entitled to only enough information to determine whether you can perform your essential job functions without posing a direct threat to anyone.  Ordinarily, the employer would not be entitled to any additional information about your disability or other medical conditions.

In most instances in which an employer has the right to require an employee to undergo a fitness-for-duty exam, the employer has the right to chose the health care professional who will conduct the exam.

For more information about when an employer can compel a fitness-for-duty exam, you might be interested in our previous article:  Employers Need Sufficient Basis to Require Fitness for Duty Exam.

Medical Certifications When Returning From a Medical Leave

There are, of course, exceptions to this general rule.  One exception is when an employee is returning from a medical leave, including but not limited to a leave pursuant to the Family & Medical Leave Act (“FMLA”).

Typically, when you return from a medical leave, your employer can ask you for a fitness-for-duty certification from your own health care provider.  Your employer can do so only relating to the particular medical condition that was the reason for your leave of absence.  In other words, generally your employer cannot seek information about any other medical conditions you have.

Further, while your employer can ask your physician for more information about your fitness for duty, it cannot require you to get a second or third opinion when you are returning to work from a medical leave.

Medical Certifications Supporting Requests for Reasonable Accommodations

Similarly, when an employee requests a reasonable accommodation for a disability, the employer can require the employee to provide medical documentation.  Typically, that documentation would indicate that you can perform the essential functions of your job with the requested accommodation.

If your doctor does not provide sufficient documentation regarding your need for a reasonable accommodation for your disability, then your employer needs to explain the deficiency to you and give you and your doctor an opportunity to provide the missing information.  If the employer still does not have enough information, it may be able to require you to go to a doctor it selects.

What Should You Do if Your Employer Improperly Required You to Attend a Medical Exam?

If your employer has asked you to undergo a fitness-for-duty exam and you believe it does not have a lawful basis to do so, then you should contact an employment lawyer to discuss your legal rights and options.  We welcome you to call Rabner Baumgart Ben-Asher & Nirenberg, P.C., at (973) 744-4400 to schedule an appointment with a New Jersey employment lawyer.

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