The Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit on behalf an employee that was allegedly fired for not executing a medical release relating to a Fitness-for-Duty examination to return to work. Under the Americans with Disabilities Act (“ADA”) an employer may require an employee to submit to a medical examination if the employer has a reasonable belief that the employee will not be able to perform the essential job functions or poses a threat.
In this case, however, the EEOC alleges in its complaint that the employee was required to sign a release for all of his medical records as part of the fitness for duty examination — well beyond the information the employer required to make an appropriate assessment under the ADA. The complaint alleges the release required the employee to provide
“all information concerning medical care, advice, treatment, or supplies provided to me,” and “all information related to or forming the basis of any medical, mental health and/or substance abuse evaluation, recommendations and/or determinations.”
[all information concerning] family history involving psychiatric, chemical dependency, suicide, and major medical issues.
The complaint argues that the employee, while willing to go through a fitness for duty examination, refused to sign the broad medical release and was ultimately terminated. The EEOC alleges that the release violated the ADA as well as the Genetic Information Nondiscrimination Act (which prohibits the use of genetic information in employment) because it was too broad.
The complaint highlights very important considerations for employees that are returning back to work either under ADA or the Family Medical Leave Act (“FMLA”).
- Under the ADA an employer may request a fitness for duty examination; however, it must be limited in scope to the specific disability at issue and can only seek information necessary to evaluate an employee’s right to return to work. The employer cannot use a fitness for duty examination to make unrelated inquiries into the employee’s medical history that could impact the employee’s job performance.
- Under the FMLA, an employer may require a Fitness for Duty certification (not an examination). The employer, however, must tell its employee when it grants the FMLA leave that a fitness for duty certification will be required. This certification requires only that the employee’s health care provider certify that the employee is able to resume work (it may also require a certification that the essential job functions may be performed). Nothing more. Nothing less.
- Under the FMLA, once the employer receives the Fitness for Duty certification, the employer must generally return the employee back to work (may not delay), but it can seek a clarification of the certification. This clarification must be limited to the reason the employee went on FMLA leave.
If you are returning to work because you were on ADA leave or leave under the FMLA and have questions contact the employment attorneys at Maduff & Maduff today.