The exam can only be required in limited situations.
If you have a disability, you are entitled to certain protections under both federal and California law. Having documentation of your disability does not mean that your employer cannot take request additional information regarding your ability to perform essential job functions. In certain situations, your employer can require you to submit to what is known as a fitness for duty exam.
As a California disability discrimination attorney can explain, a fitness for duty exam is a medical examination that an employer can require if he or she has a reasonable belief based on objective evidence that:
- The employee’s ability to perform essential job functions will be impaired by a medical condition; or
- The employee will pose a direct threat due to a medical condition.
The examination must be job-related and consistent with business necessity. Through this exam, the employee can obtain a fitness for duty certification.
This likely seems intrusive, and it can be — which is why employers are required to have a genuine reason to doubt an employee’s ability to perform job-related functions. A company cannot request a fitness for duty exam simply because a person has a disability. There has to be something more, like poor productivity, excessive absenteeism, or difficulty performing essential functions of the job.
There are situations where a fitness for duty exam cannot be requested. For example, if an employee takes leave under the Family and Medical Leave Act (FMLA), if his or her physician certifies that they can return to work from leave, an employer must allow that employee to return to work. However, if the certification from the doctor is incomplete, then the employer can ask for more information — but not an examination. Alternatively, an employer can request an exam that is consistent with the Americans with Disabilities Act.
If an employee took non-FMLA leave pursuant to California’s Fair Employment and Housing Act (FEHA), then his or her employer can request that they undergo a fitness for duty exam upon return from a medical leave of absence. This can only be done if there are reasonable safety concerns — not simply because an employee took a medical leave.
Fortunately, there are protections built into the law that guard your privacy if an employer requests a fitness for duty exam. According to a California disability discrimination attorney, California’s Confidential of Medical Information Act (CIMA) provides that unless you authorize further disclosure, the only information the employer can learn from your exam is if you are able to perform the essential functions of the job. The examiner cannot disclose what your diagnosis is, or why you cannot perform the functions of your job (for example). If you can perform your job with reasonable accommodations, then CIMA allows your employer to know the medical restrictions of your fitness for duty so that these accommodations can be made (such as an alternative schedule or restrictions on lifting).
If your employer has requested that you take a fitness for duty exam outside of these parameters, or has gained access to your confidential medical information in violation of CIMA, then you may have a claim. The experienced legal professionals of PLBSH can help. Contact our firm today at (800) 435-7542 or email@example.com to schedule a consultation with a California disability discrimination attorney.