Our clients frequently ask us how to best handle various employee medical issues such as work-related injuries, leave of absence requests and work restrictions. Indeed, it seems that these types of issues, and (unfortunately) the amount of threatened or actual claims against clients alleging that they have not handled such situations appropriately, are on the rise. 

With a variety of complicated laws involved (e.g., the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), workers’ compensation), it can often be difficult to figure what you should do, when you should do it, and who needs to play a role in the decision-making process. To help you sort things out, we thought it might be useful to discuss one particular issue that we recently helped a client navigate: when can a company require that an employee returning from a medical leave of absence undergo a medical examination?

Here, the questions may be easier to spot than the answers. For example, are there any applicable exceptions to the ADA’s general prohibition against medical examinations? Does the FMLA require entitlements for returning employees in the same manner it gives certain employees an entitlement to unpaid leave? What does the employer do with the information it obtains if it conducts an examination? Let’s tackle some of these issues one at a time.

Should an employee returning from leave be required to undergo an examination of any type?

Before you decide whether you can or should do an examination, it’s a good idea to consider if you need it. For certain jobs, such as physically demanding positions, it may be good to get assurance that an employee can safely perform a particular job after a medical leave. This is especially important if the employee’s health issue was related to certain job tasks (e.g., a shoulder injury incurred while lifting boxes). In jobs where serious injury is a concern, it may also be prudent to ensure the health condition does not pose a safety risk to the employee or to others. 

On the other hand, there are many positions where an employee’s health condition may have little impact on their ability to work upon his or her return (i.e., a secretary recovering from surgery for a broken ankle). Therefore, we generally encourage our clients to consider the nature of the employee’s health condition and the job requirements in determining if an examination is necessary before the employee returns to work.

What type of examination can or should be conducted?

The ADA generally prohibits medical examinations. But not all examinations are treated equally under the law. For example, physical agility and fitness tests are not medical examinations and may be lawfully required at any point in the application or employment process, including upon an employee’s return to work following leave related to the employee’s serious health condition. So if you want employees to be examined before returning to work, consider whether agility or fitness tests might suffice.

Is the employee returning from FMLA leave?

If so, be careful. The FMLA does not permit an employer to make its own determination regarding whether an employee is fit to return to work following FMLA leave for a serious health condition. For such an examination to pass legal muster, it must be permissible under the ADA — meaning it needs to be job related and consistent with business necessity. This is another reason why it would be helpful to consider the nature of the employee’s job and the specific health condition before deciding whether to require such an examination.  

If the employee is returning from FMLA leave, is there anything I can do?

Yes. Employers can require employees coming back from FMLA leave due to a serious health condition to obtain a fitness-for-duty certification as condition of returning to work. This certification can be at the employee’s own expense from their own treating physician. Please note that the requirement must be communicated to the employee at the same time that notice of eligibility for FMLA leave is given (i.e., in the notice provided to the employee at the outset of his or her leave).

How do we minimize legal risk on “return to duty” examinations?

Along with the suggestions offered above, we recommend that the company, to the greatest extent possible, uniformly administer any return to duty testing. In other words, all similarly situated employees returning to work (i.e., same occupation, same serious health condition) should be subject to an equal requirement for an examination. We also recommend that such an examination be limited to the actual medical condition that caused the employee’s absence. 

A more comprehensive examination may be required under any of the following circumstances:

• The employee has requested accommodation of a disability and the company wants medical documentation to support the request.

• The company has a genuine concern that the employee may not be medically fit to perform the essential functions of his or her job.

• The company has a genuine concern that the employee may constitute a direct threat to self or others. Direct threat is defined as a high risk of substantial harm and takes into consideration the nature, severity, probability and duration of the risk.

If the company questions whether an employee is medically fit to perform the essential functions of his or her job or if an employee may constitute a direct threat, consider directly observing the employee before deciding to require a medical examination. Ideally, observation will take place while the employee is actually performing or attempting to perform the job.

What if we examine an employee and determine that he or she can only return to work with restrictions?

In this scenario, the ADA (or comparable state law) may apply and the company may need to consider if it can provide a reasonable accommodation to allow the employee to perform the job. This obligation does not depend on whether the restrictions are related to the actual medical condition that caused the employee’s absence. 

Restrictions resulting from any medical condition may require that the company engage in the “interactive process” with the employee to assess whether a reasonable accommodation can be provided.

What if the company’s examination says the employee can return to work without restriction, but the employee produces a doctor’s note saying there are restrictions?

Employers should be very careful about ignoring any information from an employee’s health care provider. Depending on the circumstances, the company may need to treat the employee’s medical information as it would any request for leave under the FMLA, and perhaps as a request for reasonable accommodation under the ADA.