By Richard Bunch, PhD, PT, CBES – CEO, WorkSaver Systems
Occasionally, I find that there is some confusion by clinical evaluators and even employers regarding how to properly conduct a post-offer, pre-placement fitness for duty (FFD) evaluation when the test recipient presents with a disability and is protected by the Amended Americans with Disabilities Act (ADA). Those that have presented with such confusion are sometimes surprised when I inform them that an FFD evaluation should not provide any type of accommodation to a new hire test recipient whether they present with a disability or not. The reasons for this statement are as follows:
If an FFD evaluator avoids a test procedure or ignores certain testing outcomes during an FFD examination in order to “accommodate” a person who is disabled during testing, and then provides a green light for the person to be placed on the job, the clinical evaluator has created a huge disservice to the employee and the employer. First, such an action by the clinician places the employee in jeopardy of becoming seriously injured on the job. Second, by such action the clinical evaluator essentially denies the employer critical information that can be used to properly perform an interactive accommodation review.
It is imperative to reiterate that a qualified person with a disability has the legal right to undergo a job-specific fitness for duty exam like anyone else. For ADA cases the purpose of the examination is to determine what the test recipient can or cannot do safely without accommodations. This allows the employer to use the results of the FFD examination objectively to perform an accurate accommodation review based on the specific functional deficiencies noted in the FFD report.
For example, let us assume that a test recipient presents with a chronic medical problem affecting the right shoulder and when tested he/she was found to be able to safely lift the job-required weight of 60 lbs from floor to waist level , but could not safely lift more than 30 lbs to the shoulder level when the job-specific test protocol requires a shoulder level lift to 40 lbs. Using the information from the FFD report, the employer can now accurately determine if he can reasonably accommodate the employee by limiting his job duties to lifting no more than 30 lbs to shoulder level or not. (Remember, employers are not obligated to offer accommodations if accommodations create an undue hardship.) Now assume the clinician, thinking the person is protected by the ADA erroneously feels obligated to pass him/her as a form of an accommodation, allows the shoulder lift test failure to slide and notifies the employer that the test recipient has passed the FFD examination. Without the employer knowing the shoulder level lift limitation, the employee will be placed at direct risk of harm when lifting to the job required shoulder lift of 40 lbs.
Therefore, passing a test recipient protected by ADA despite the test recipient’s failure to meet all of the essential job requirements in the FFD evaluation is obviously not an accommodation. In fact, as already mentioned, this action can lead to the employee being seriously injured if the employer thinks the person is able to perform all the job-specific functions tested in the FFD examination. This also can result in liability on the part of the employer as well as the FFD evaluator. Remember, in order to protect the test recipient, the details of the FFD report and his/her private health information are not shared with the employer on the day of test outcome notification. It is the notification of a test failure that triggers an accommodation review by the employer.
So, when can an FFD examination be modified to accommodate a person with a disability in order to determine whether or not an accommodation is effective? The answer is only when the accommodation is provided by the employer to the clinician in advance of the FFD examination. For example, using accommodations based on the results of a new hire (post-offer, pre-placement) FFD examination, the employer can require a retake FFD examination prior to job placement that has been modified by incorporation of the accommodations to verify that the accommodations are actually effective. This same process can also be followed for “for cause” FFD examinations of incumbent employees that reveal accommodations are needed to return to work.
In essence, the use of a properly performed FFD examination is instrumental in determining reasonable accommodations for safe job placement. For further information on the legal aspects of fitness of duty please contact our office for a copy of Dr. Bunch’s book chapter contribution on this subject published in the American College of Occupational and Environmental Medicine (ACOEM) Occupational Health Guide (2018) or e-mail Dr. Bunch or Trevor Bardarson at: