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An Employee’s Question

I’ve been off work for six weeks or so, seeking treatment for post-traumatic stress disorder (PTSD) related to my military service. Although my condition was debilitating at onset, I feel much better now and am fully able to return to work. My employer is insisting that I take a fitness-for-duty exam before I can go back. Is this legal? It seems like my employer is assuming that I can’t be trusted to handle myself just because I have a mental condition.

Answer

Whether an employer can require a fitness-for-duty exam depends on your condition and your job. If your condition is one that could reasonably impair your ability to perform your job, then your employer can require a fitness-for-duty examination before you return to work.

Generally speaking, a fitness-for-duty exam is a medical examination of a current employee to determine whether the employee is physically or psychologically able to perform the job. Sometimes, fitness-for-duty exams are required when an employee is ready to return to work after taking time off for a serious illness or injury. For example, an employee with a serious back injury might have to take a fitness-for-duty exam before coming back to work, to make sure the employee is capable of meeting the physical requirements of the job. A fitness-for-duty exam might also be required of an employee whose behavior on the job gives the employer reason to believe that the employee is not able to perform the job safely. For example, if a forklift operator is found unconscious at the controls, the employer could require the employee to get checked out, to make sure the employee doesn’t pose a serious safety risk.

If the employee has a disability, Fitness-for-duty exams may reveal information about an employee’s disability, so they are regulated by the ADA. If an employee has a disability, an employer may require a fitness-for-duty exam that is job-related and consistent with business necessity. This standard will generally be met if the employer has a reasonable belief that:

1. the employee’s condition may prevent the employee from performing the job’s essential functions, or
2. the employee poses a direct threat to his or her own safety or the safety of others.

The employer’s belief has to be based on facts, not on stereotypes or assumptions about the employee’s condition. In your case, for example, the employer might be justified in requiring an exam if your behavior prior to taking leave caused the employer to have objective, reasonable concerns that you created a safety risk or could not perform your job. If, however, your behavior and conduct did not give the employer legitimate cause for concern, and nothing suggests that you are unable to do your job safely, the employer would be hard pressed to justify an exam. In other words, the employer may not simply assume that anyone with a mental disability is by definition dangerous or incapable of excellent work. But an employer can require a Fitness for Duty Test if there is legitimate concern about your ability to do your job without undue risk.

Example: A police officer suffered a head injury, for which he had to take time off work. Several years later, he began acting erratically, responding emotionally and angrily during conversations with coworkers, losing control during a traffic stop, being accused of a domestic altercation with his wife, and making comments about his situation, such as “it doesn’t matter how this ends” and “I’m not sure if it’s worth it.” The employer required the officer to take a fitness-for-duty-exam in order to stay on the job, and the Ninth Circuit Court of Appeals upheld its right to do so. The Court cautioned that, although preemptive psychological exams (exams required while the employee was still on the job) could be abused by employers seeking to harass employees or force them out, it was justified in this case by the officer’s volatile behavior and the stress and danger inherent in his job. Because the employer had reasonable cause to question the officer’s ability to do his job, the exam did not constitute disability discrimination under the ADA. (Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010).)