Have you ever doubted whether one of your employees actually was fit to return to work from a leave of absence?
Take this situation I counseled a client through a few months back: one of their employees texted a suicide note — to about 40 of his co-workers. Not surprisingly, it turned the workplace upside down. Thankfully, the employee did not go through with it, but after a short leave of absence, he claimed he was ready to return to work. My client rightfully was concerned whether it had an obligation to return him to work with little more than a conclusory prescription pad note stating, “Johnny can return to work now.”
It’s not uncommon for circumstances to suggest that an employee may not be mentally or physically capable of performing their job duties even after they have had some time off. In these instances, can the employer require the employee to submit to a medical examination as a condition of returning to work?
In a word, yes.
The FMLA offers no help, as it simply requires the employee to present certification from his health care provider that he is able to resume work. 29 C.F.R. § 825.312(a) In most cases, this will not provide the employer sufficient information to ease its concerns about the employee’s medical condition. But where the FMLA fails us, the ADA saves the day!
Under the Americans with Disabilities Act, an employer may require the employee returning from FMLA leave to undergo a medical examination if the employer has a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired by a medical condition or that he or she will pose a direct threat due to a medical condition. In its enforcement guidance, the EEOC gives us an example:
As the result of problems he was having with his medication, an employee with a known psychiatric disability threatened several of his co-workers and was disciplined. Shortly thereafter, he was hospitalized for six weeks for treatment related to the condition. Two days after his release, the employee returns to work with a note from his doctor indicating only that he is “cleared to return to work.” Because the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat [to his co-workers or himself] due to a medical condition, it may ask the employee for additional documentation regarding his medication(s) or treatment or request that he submit to a medical examination. (Question No. 17).
The courts generally support an employer’s right to require a medical examination in these instances. Just recently, in fact, in Owusu-Ansah v. Coca-Cola Co., a federal appellate court upheld an employer’s right to require a medical examination from an employee returning from leave after he made threatening comments in a meeting with his supervisor. See my colleague Abizer Zanzi’s practical guidance on the case here.
Insights for Employers
As Abizer points out, employers need not take a “wait-and-see” approach to medical examinations. If you have a reasonable belief that the employee’s medical condition may render him unable to perform the job, or that he may be a threat to himself or a co-worker, courts will enforce your right to obtain a medical examination so that you have the confidence you need to make a fitness-for-duty determination. However, employers should tread carefully. Work with employment counsel to ensure that a mandated medical examination is not viewed as retaliatory simply because the employee took leave.