When Can Fitness for Duty Exams be Used by Employers?
Mark I. Levy, M.D.
The reasons that companies request fitness for duty exams for employees are to ensure that they have adequately recovered from a disability or to evaluate the reasons that the employee isn’t meeting the level of performance required in their position. Determining when to evaluate an employee’s job fitness can be a complex decision, due in part to the Americans with Disabilities Act (ADA), and other laws that are designed to protect individuals with physical and mental disabilities. There may be a fine line between taking the action that is right for the workplace situation to protect other people as well as the employee, and creating legal liability for the employer.
When an employee exhibits disturbing behavior that can affect his or her ability to perform their job duties, there is a legitimate reason to call in a forensic psychiatric to perform a fitness for duty (“FFD”) exam, especially if the well-being of the employee or others may be at risk. However, this action should only be used after other management interventions have been tried and failed. The request for an FFD examination should not be made merely based on myths, stereotypes or prejudices associated with the individual’s behavior. For example, if an employee in a demanding position is suffering from depression, you shouldn’t assume they will not have the energy or enthusiasm to perform their job duties. However, if that employee were to start missing work frequently due to their condition, determining the person’s job fitness will help the employer make the decision about whether this person has the ability to do the job for which they are being paid.
Forensic psychiatrists have the ability to look from a psychiatric and psychological perspective at the issues that may arise in dealing with employees who have psychiatric disorders, and not just from a legal standpoint. Although laws have been put in place to protect people with disabilities, it is important to realize that there are stringent legal guidelines for protecting the privacy of the employee and these must be adhered to by both the employer and any forensic psychiatrist or psychologist retained to conduct the FFD evaluation. During the exam by the forensic psychiatrist, the specific life and job functions that are affected by the disability will need to be evaluated in order to determine if the person has impaired work functioning.
Many employers feel trapped by the laws designed to protect disabled individuals. However, the specific circumstances of each case need to be carefully examined and frequently will determine how the situation should be handled. Experienced forensic psychiatrists who are familiar with federal and state laws related to disabilities can determine the job functions that may be affected by the disability and whether the person is fit for the job.
The specific Federal and State laws that are relevant usually include the Americans With Disabilities Act of 1990 (“ADA”) as well as State guidelines such as in California the Fair Employment and Housing Act (“FEHA”) administered by the Equal Employment Opportunities Commission (“EEOC”).