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Under the Americans with Disabilities Act (ADA), the purpose of the interactive accommodation review (IAR) process is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” In return to work cases following injury or illness, employers are not required to make on-the-spot accommodations of an employee’s choosing or be forced to provide an alternate job simply based on what the employee’s personal doctor may recommend. In many cases the employee’s personal doctor may not fully understand the physical demands of a job, whether it be the current one held by the employee or an alternate job that is presented to the doctor as less physically demanding.

A properly performed fitness-for-duty (FFD) evaluation as offered by WorkSaver Employee Testing Systems takes the guess work out of job placement for the medical doctor and employer when trying to determine appropriate accommodations and whether or not accommodations create an undue hardship to the employer. This will significantly help reduce legal exposure to the employer if an adverse action to the employee is taken.

In order to ensure that an employee returning to work following an injury is able to perform a job safely, the employer has the right to request additional medical information. Although important, this process can take time and frustrate an employee (as occurred in the Brumley v. United Parcel Service case). Medical information, although important to obtain, can be difficult to interpret as it relates to work capacities. However, the employer can require an FFD exam which validates the employee’s abilities to perform the essential functions of a job. An FFD exam process takes the guess work out of trying to determine whether or not an employee can return to work safely.

In Brumley v. United Parcel Service, Inc., the Plaintiff Melissa Brumley, who worked primarily as a sorter, injured her back while unloading heavy packages from a UPS truck. After receiving worker’s compensation and taking a leave of absence, she initially returned to work with two return-to-work notes that included permanent lifting restrictions and a statement that Brumley may return to “local sort.”  UPS initiated an internal ADA IAR process, and pursuant to that process, asked Brumley to submit two medical forms that would allow it to evaluate further her restrictions and identify possible accommodations. After nearly a month delay in providing UPS with the requested medical documents, Brumley met with UPS’s Human Resource Manager. At that meeting, UPS indicated that they were reviewing Brumley’s restrictions and considering positions she could fill. However, Brumley disclosed at that meeting that she desired to voluntarily discontinue the interactive process and return to her doctor to have her work restrictions lifted. Because Brumley’s lifting restrictions were ultimately removed by her doctor, she ultimately returned to work without accommodations. After Brumley’s restrictions were lifted, UPS closed the interactive process and Brumley returned to work.

Nevertheless, several months later, Brumley sued UPS for failure to accommodate and disability discrimination, among other claims — in other words for keeping her off work during the time that they were evaluating her “return to local sort” restrictions from her doctor. The district court granted summary judgment in UPS’s favor on all claims and Brumley appealed. The court ruled that the ADA does not obligate employers to make on-the-spot or immediate accommodations of the employee’s choosing. UPS had discretion to provide a reasonable accommodation as identified through the interactive process. Once Brumley voluntarily abandoned that process, UPS could not be liable for failing to provide a reasonable accommodation.

Although the Brumley v. United Parcel Service, Inc decision demonstrates that the IAR process requires both the employer and employee to engage in good faith— it is also apparent that an FFD exam could have been beneficial in expediting job placement, and perhaps avoiding costly litigation. As per WorkSaver’s retained legal counsel, Topper Thompson: “An employer has a legal obligation to assure during the IAP that, in performance of the essential functions of the accommodation position sought, the employee’s disability or perceived disability does not present a direct threat to the employee or others. FFD testing can be an essential element of an Interactive Accommodation Process, especially for a position which requires performance of high-risk essential functions. Accommodation into a high-risk position requested by the employee, without determining if the employee can safely perform essential functions, can lead to an injury for which the employer could be found liable.

For more information on how to utilize ADA and EEOC-compliant Fitness for Duty testing for new hires and return to work cases, call WorkSaver at (800) 414-2174 or email dr.bunch@worksaversystems.com or trevor@worksaversystems.com

About the authors:

Dr. Richard Bunch: Dr. Bunch is a licensed physical therapist and ergonomic specialist who holds a medical PhD in Neuroanatomy. He is the CEO and co-owner of WorkSaver Employee Testing Systems and serves as an Adjunct Associate Professor at Tulane’s School of Environmental Medicine where he lectures on ergonomics.  Dr. Bunch is the author of “Legal Aspects of Fitness for Duty Testing” published this year (2019) in the peer reviewed American College of Occupational and Environmental Medicine’s “Occupational Health Guide.”

Horace (Topper) Thompson Esq.:  Mr. Thompson is a labor attorney and a past federal administrative law judge who served in Washington DC as one of the three presidentially appointed and Senate confirmed Commissioners of the Occupational Safety and Health Review Commission (OSHRC). He was originally appointed as Chair by President George W. Bush (43), and served the final 2 years of his 6-year term under President Obama. After his term on OSHRC, Mr. Thompson served another five years as a federal administrative law judge: first adjudicating SSA ODAR disability cases, then trying ICE Immigration Law cases, and then adjudicating the trials of contested OSHA citations, and finally as a FMCS certified arbitrator. When he returned to the practice of law from 2014 – 2016, Topper eventually began to work very closely with Dr. Bunch, CEO, and Trevor Bardarson, President,  both owners of WorkSaver Systems, to provide legal advice to assist WorkSaver Systems to navigate the legal shoals of Fitness for Duty Testing.