Fit to Work or Fit to be Tied: Fitness for Duty, Return to Work and Other Medical Examinations Under the ADA, the FMLAs, State Disability Discrimination Laws, and State Worker s Compensation Acts Workshop E 11:00 a.m.-12:00 p.m. Presented by: Eric E. Hobbs Chuck B. Palmer 100 E. Wisconsin Ave., Ste. 3300 Two Riverwood Place Milwaukee, WI 53202 N19 W24133 Riverwood Drive, Ste. 200 414-271-6560 Waukesha, WI 53188 eehobbs@michaelbest.com 262-956-6560 cbpalmer@michaelbest.com
Introduction Medical examinations useful for multiple, employment-related purposes Use must be deliberate and with all potential implications/limitations considered Example: Fitness-for-duty examination in case of occupational injury/illness can constitute IME usually the contractual right of your worker s compensation carrier
Types of Examinations Fitness-for-duty: To determine ability to perform where condition is questionable or performance is suspicious Return-to-work FMLA leave At end of disability leave Upon return from worker s compensation injury/illness leave
Types of Examinations (cont.) Independent medical examinations, or IMEs A term of art Used in cases of worker s compensation injuries/illnesses To determine causation, diagnosis, prognosis, extent of disability (temporary or permanent), reasonableness of treatment provided, need of future treatment or care (hearing aides, prostheses, medications, etc.)
Laws Implicated ADA and State Disability Statutes ADA definition of disability: a physical or mental impairment that substantially limits one or more major life activities ; having a record of such an impairment ; and being regarded as having such an impairment State disability discrimination statute definitions of disability vary; for example, Wis. Stat. sec. 111.32(8); physical or mental impairment which makes achievement difficult or limits the capacity to work ; a record of such impairment ; or perceived as having such an impairment More employee-protective provisions of law trump less employee-protective provisions
Laws Implicated (cont.) ADA and State Disability Statutes (cont.) Employer has right under ADA to medical examination related to claimed disability. Purposes To confirm diagnosis To confirm extent of related limitations/restrictions To confirm prognosis or length of disability To assist in reasonable accommodation process To review and confirm/rebut opinion of treating heath care provider
Laws Implicated (cont.) ADA and State Disability Statutes (cont.) When should an employer require a medical examination for ADA purposes? Not in every case For the reasons above Problem of regarded as : Do I really want that information?
Laws Implicated (cont.) ADA and State Disability Statutes (cont.) Medical examinations prohibited by ADA Pre-job offer absolutely prohibited Post-commencement of employment (a/k/a postemployment) prohibited unless job-related and consistent with business necessity Include mandatory (versus voluntary) employee health program examinations; pen-and- pencil tests interpreted by health care professionals (physicians, clinical psychologists, physicians assistants, etc.); tests for lawful use of alcohol.
Laws Implicated (cont.) ADA and State Disability Statutes (cont.) Exclude tests for illegally used drugs (illicit street drugs, prescribed drugs used unlawfully, etc.); medical examinations required (not just allowed) by other laws for example, OSHAmandated medical monitoring, over-the-road truck driver examinations, airline pilot examinations, etc.; physical agility tests
Laws Implicated (cont.) Worker s Compensation Statutes IMEs allowed under all states worker s compensation statutes Usually the carrier s prerogative/responsibility Both opportunity and exposure for you: Blame the carrier Carrier pays Carrier vs. employer conflict of interest Inadvertent breach of contract by use of fitness-for-duty examination
Laws Implicated (cont.) Family and Medical Leave Acts Remember: both Federal and state FMLAs Medical examinations more limited under FMLAs than under other laws Not as common as in in worker s compensation cases; but worker s compensation illnesses/injuries almost always qualify as FMLA serious health conditions. Mandatory tie-breaker medical examinations by agreed-upon health care provider and at employer expense
Laws Implicated (cont.) Family and Medical Leave Acts (cont.) Limitations on medical examinations No return-to-work physicals unless notice of requirement given at outset of leave Return-to-work physical examinations, even if noticed appropriately, must be required of all other similarly-situated employees returning to work from FMLA leaves.
Fitness-for-Duty Exams As described above, generally lawful. Can be a powerful and useful tool. Used by most employers too infrequently.
Fitness-for-Duty Exams (cont.) Uses Ferret out fraud Confirm condition Confirm ability/inability to do regular or light duty work Deter abuse of medical leave time Clarify/rebut treating provider s opinion Clarify employee ability to perform particular job by use of healthcare provider well-informed about workplace, job functions
Fitness-for-Duty Exams (cont.) Uses (cont.) Confirm need/length of leave time Help fulfill interactive process obligation under ADA Confirm ability to return to work at conclusion of absence Provide work limitations to be followed upon return to work in order to avoid compensable injury/reinjury
Pitfalls Confusion of fitness-for-duty examination with IME Use in FMLA cases without abiding by FMLA limitations Use pre-job offer Use post-commencement of employment when not job related and consistent with business necessity
Pitfalls (cont.) Use when unnecessary and therefore apparently harassing/discriminatory/retaliatory Use when other, similarly-situated employees not subjected to examination Collection of unnecessary medical information so as to taint future employment decisions and lay groundwork for discrimination/retaliation complaints
Medical Examination DOs and DON Ts DOs Do have a policy on the use of fitness-for-duty and other medical examinations. Do use medical examinations where appropriate to put a check on leave time abuse and to confirm condition, restrictions and ability to do essential functions. Do choose reliable and credible health care providers in appropriate specialty areas. Where appropriate, do collect and provide to your examiner copies of relevant medical records from treating providers.
Medical Examination DOs and DON Ts (cont.) DOs (cont.) Do inform employees taking FMLA leave that return-to-work examinations may or will be required. Do rely on the results of your chosen examiners. Do follow-up with your examiner if his/her report is unclear. Do make certain that your examiner is well informed of the work place, your operations and the job functions of the position in issue (by video, job description, etc.).
Medical Examination DOs and DON Ts (cont.) DOs (cont.) Do require employees to submit to examinations in appropriate cases, even if they do not want to, and discipline them for insubordination and/or refuse to process their cases or request further if they refuse to do so. Do consider that a worker s compensation injury/illness might also qualify as an FMLA serious health condition for purposes beyond just medical examination.
Medical Examination DOs and DON Ts (cont.) DON Ts Don t be afraid to use fitness-for-duty medical examinations where appropriate. Don t overuse such examinations or abuse their use. Don t schedule examinations in cases of work-related injuries/illness without consultation with/cooperation of your worker s compensation carrier. Don t forget that a second examination in an FMLA case, if your examiner disagrees with the treating provider, will result in a third examination by an agreed upon examiner at your expense.
Medical Examination DOs and DON Ts (cont.) DON Ts (cont.) Don t require post-commencement of employment examinations that are not job-related and consistent with business necessity, that is, reasonably required by the circumstances. Don t forget that your examiner s reports and your letters to/from your examiners will be discoverable in any subsequent litigation.
Scenario 1 Suzy Secretary informed you four months ago that she was pregnant and would be needing FMLA leave beginning July 1. This morning, however, she called to say that she has been suffering preeclampsia and, effective today, needs to begin her FMLA leave. She also wants to collect short-term disability benefits under your self-insured plan while she s out. You suspect Suzy may just be looking for time off to take a last vacation with her husband before they have their first child.
Scenario 1 (cont.) Can you require a medical examination? What kind of a medical examination would it be? Should you require a medical examination?
Scenario 2 Joe Jackhammer, a long-term employee, has a history of back problems that he never has claimed as being work-related. Recently, however, he did inform you that he has been diagnosed with bilateral carpal tunnel syndrome and that his doctor has related his condition to work for you. But Joe does not want you to file a claim with your carrier. He would rather collect shortterm disability benefits -- an idea you like.
Scenario 2 (cont.) What should you do first? Can you require a medical examination? What kind of a medical examination? Should you require a medical examination? If so, of what condition?
Scenario 3 Tom Technology told you three years ago that he had been diagnosed with multiple sclerosis in its earliest stages. Up until a couple of months ago, he seemed to be doing fine. But, since then, has appeared to be limping and unsteady in his gate periodically, he has been getting to work late frequently and has missed work altogether on several occasions -- by pattern more often at the end of the week than at the beginning. He has not attributed his tardiness or absenteeism to his MS when he has been asked why he was late or absent or when you have warned him that his attendance must improve.
Scenario 3 (cont.) Can you require a medical examination? What kind of medical examination? Should you require a medical examination?