If any perception appears to be universal, it is that some employees seem to be able to persuade some physicians to impose or lift any physical restrictions that the employee wants. The courts continue to affirm that the Americans with Disabilities Act does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden, and the employee’s subjective belief or insistence that he or she can do the function is irrelevant. E.g., Hohn v. BNSF Railway Co., 707 F.3d 995 (8th Cir. 2013). It is not unheard of that when the employer refuses to permit the employee to perform those restricted functions, the employee then returns the next day with a second authorization from the same physician lifting those restrictions. Conversely, many human resources managers are confronted with a physician’s written authorization that the employee is fit for duty with no restrictions when the employee simultaneously tells the employer the physician is wrong and he cannot do the essential functions of the job. The employer has a recourse in these situations, which brings us to No. 8 on our Year-End Top 10 List – the ADA Medical Examination.
The ADA permits an employer to require a current employee to undergo a medical examination that is “job-related and consistent with business necessity.” ADA medical examinations (often taking the form of functional capacity assessments) can be utilized when the employee claims his abilities are different than those stated by the employee’s physician. These examinations are useful for:
• confirming limitations or restrictions;
• assisting in the interactive process to determine the existence and nature of possible reasonable accommodations; or
• confirming or rebutting an opinion of a treating health care provider.
In addition to medical examinations permitted under the ADA, employers may require employees returning from FMLA leave to submit to return to work / fitness for duty examinations. State workers’ compensation statutes also authorize independent medical examinations in certain situations.
With that in mind, I offer some year-end reminders about medical examinations:
• It is always prudent (and sometimes required) to have your employee handbook include a policy on the use of return to work and other permitted medical examinations. An employer’s FMLA policy should state that employees returning from FMLA leave may or will be required to submit to return to work examinations.
• Use medical examinations in appropriate circumstances to confirm an employee’s condition, restrictions, and ability to perform essential functions of the job, particularly when the employee claims that the physician’s restrictions (or lack thereof) are inconsistent with his or her current ability.
• One size does not fit all. Choose reputable and credible physicians in the applicable specialty area to conduct the examination and make certain that the essential functions in question are the ones being tested.
• Educate your examiner. The examiner should be well informed about the nature and conditions of the work place, and the essential job functions in question. Provide the examining physician a copy of the accurate job description. In some circumstances, you may want to submit a video of someone actually performing the job under actual workplace conditions for that purpose. If available (and permitted), employers may also provide the examiner copies of medical records from the employee’s treating physician.
• Follow up with the examining physician if the report is unclear.
• Do not schedule examinations in cases of work-related injuries without consultation and the cooperation of your workers’ compensation carrier and assigned workers’ compensation counsel. The examining physician’s reports and the employer’s communications to and from the examining physician will be discoverable in any subsequent litigation.