04: Fitness for Duty

Fitness for duty (FFD) examinations can seem confusing and intimidating to both health care professionals and employers, due to the myriad regulations that affect employment screening. Moreover, the methodologies used in FFD examinations vary. Some examinations are customized for specific jobs; some are generic; and some are dictated by federal agencies (for example the U.S. Department of Transportation or U.S. Coast Guard). Regardless of the protocol, FFD examinations must be carefully designed and administered to comply with federal regulations established to help ensure equal job opportunities for protected classes related to disability, obesity, gender (including gender identity and sexual orientation), pregnancy, national origin, age, genetics, race, color, religion, and sex.

If a post-offer, preplacement FFD examination is not administered correctly, the employer may find itself facing a charge of discrimination by the U.S. Equal Employment Opportunity Commission (EEOC). FFD evaluators therefore have both professional and fiduciary responsibilities to employers for conducting examinations in a manner that is compliant with employment discrimination laws.

The American with Disabilities Act

The Americans with Disabilities (ADA-1990) and the ADA Amendments Act (ADAAA- 2008), collectively referred to here as ADA, are the most notable of the federal regulations designed to prevent employment discrimination. Title I of the ADA makes it unlawful for an employer to discriminate against a qualified person with a disability. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or the state of being regarded as having a disability. To prove discrimination under the ADA, a person must show that he or she has been subjected to an action prohibited under the law—regardless of whether the impairment limits or is perceived to limit a major life activity. The conditions for what constitutes a disability were expanded on by the ADAAA. These include impairments that are episodic or in remission but would substantially limit major life activities when active. Impairments that substantially limit major life activities are considered disabilities regardless of whether individuals are able to take measures to mitigate the problems, such as by taking medications or wearing prostheses.

Medical Inquiries and ADA

A medical examination cannot legally be performed prior to a job offer. Nor can information be provided to an employer about disability, medical history, medications, or prior workers’ compensation claims before an offer. However, an employer can ask a job applicant prior to a job offer if he or she is able to perform job-related functions or ask him or her to demonstrate the ability to perform job-related functions (such as lifting a weight or climbing a ladder), as long as there is no medical testing or monitoring (such as a blood-pressure reading).

Qualified Individual with a Disability

A qualified individual with a disability is a person who has the needed skills, experience, education, and other job-related requirements to perform the essential functions of a job—not marginal duties—with or without reasonable accommodations. If a qualified individual with a disability fails an FFD examination, employers must conduct an “interactive accommodation review” to determine whether the workplace can offer reasonable accommodations to work. For more guidance on enforcement of ADA regulations, visit eeoc.gov/policy/docs/guidance-inquiries.html.

Direct Threat – A Key Issue in FFD Determinations of Work Ability

Although the ADA prohibits discrimination on the basis of disability, an employer may legally decide not to hire a person with a disability if that person poses a direct threat of harm—that is, a significant risk to the health or safety of him- or herself or others that cannot be eliminated by reasonable accommodation.

Determining whether someone poses a direct threat must be based on an individualized assessment, such as an FFD examination, of the individual’s ability to safely perform the essential functions of the job. This assessment must rely on reasonable medical judgment based on the most current medical knowledge and/or on the best available objective evidence. When assessing direct threat, the following factors should be considered:

• Duration of risk
• Nature and severity of the potential harm
• Likelihood that the potential harm will occur
• Imminence of the potential

In essence, direct threat under ADA means the harm must be serious and “likely” (or reasonably determined) to occur, not remote or speculative. Note the term “reasonably determined” is analogous to the ritualistic words “reasonable degree of medical certainty” used by medical expert witnesses in most state and federal courts to imply that there is at least a 51% probability.

Role of the FFD Evaluator

The role of the evaluator when assessing fitness for duty is to identify any conditions or diagnoses that, in the context of the job, could result in a significant risk or harm to self or others, including the public. In addition, the evaluator’s role is to provide an unbiased opinion. Before conducting the assessment, the evaluator should have the following information:

• Knowledge of any established or verified diagnoses potentially affecting the individual’s ability to function on the job
• The essential physical requirements of the job
• Knowledge of any possible regulatory requirements for the job
• Knowledge of biomechanical factors related to any diagnoses (such as the impact of spinal compression on a person with a diagnosis of a ruptured disc when lifting)
• Recognition of possible psychosocial factors affecting fitness for duty
• Potential workplace accommodations available.

Assessing Risk, Capacity, and Tolerance to Work

Determining whether a person is able to work safely can be difficult and challenging: it has the potential to affect individuals’ livelihoods as well as employers’ human resources by influencing workers’ employability, job transfers, promotions, workers compensation, and disability determinations. Conducting an FFD examination is both a science and an art. According to the AMA Guides to the Evaluation of Work Ability and Return to Work, when assessing ability to work, the evaluator should consider three primary factors: risk, capacity, and tolerance. Assessment of the first two of these factors, risk and capacity, can be correlated to federal guidelines established by the ADA.

Risk

Risk refers to the chance that a worker will cause harm to self or others when performing work. The FFD evaluator primarily determines risks related to known medical conditions. No one can expect an FFD evaluator to know with 100% certainty that an employee can work without risk of being injured or injuring someone else. However, the expectation is that the FFD evaluator will make decisions based on a reasonable degree of medical certainty. When it comes to assessing risk, the ADA provides the “direct threat” standard as the bar that the evaluator may use.

Capacity

Capacity refers to scientifically measurable physical abilities, such as strength, flexibility, and endurance. A well-designed FFD examination adequately measures these physical parameters. Therefore, combining the evaluator’s medical expertise with the objective measures derived from valid FFD tests, in most cases, provides an effective means to assess work ability within a reasonable degree of medical certainty. Regarding capacity, the ADA provides that the FFD evaluator should compare the employee’s strength, flexibility, and aerobic capacities to the “essential physical demands” of the job.

Tolerance

Tolerance refers to the ability to tolerate performing sustained work or work at a certain level. Tolerance is purely a subjective determination and includes the concepts of pain. Tolerance presents the greatest challenge to the FFD evaluator, especially in return-to-work cases. This factor can be positively or negatively affected by psychosocial or psychological factors, such as motivation to return to work, and therefore defies scientific measurement or verification.

Legal Aspects of Drugs and FFD Testing

In general, prior to a job offer, the ADA allows a job applicant to be asked about any current illegal use of drugs (including prescription drugs without a lawful prescription); such inquiries are not prohibited by federal or state discrimination laws. In some states, a job applicant cannot be asked about the use of marijuana. FFD evaluators should remain vigilant and attentive to laws dealing with questioning job applicants about marijuana and other drugs, which are evolving in various states. Individuals who use legally prescribed opioid medications, as well as recovering and recovered substance abusers, are considered “disabled” by the ADA and comparable state laws. Therefore, prior to a job offer, an individual may not be asked about lawful drug use, because such questions are likely to elicit information about a disability. However, in cases when there is a positive drug test result, the evaluator is allowed to ask about lawful drug use or other possible explanations to validate the result.

Of special concern, from a safety perspective, is conducting FFD tests on test recipients while they are taking prescribed opioids or other legal pain killing medications. Such drugs not only signal the presence of pathology but may mask pain enough to allow further tissue damage to occur during FFD testing without the examinee reporting increased pain. Also, the performance of a test recipient taking pain medication during an FFD test may exceed and falsely represent what can be performed at work.

In view of these effects of pain medications, the FFD evaluator should have policies and procedures in place related to test subjects who report symptoms or take pain medications at the time of the exam. At the time of this writing, there is no clear EEOC guidance on the issue of testing an individual while he or she is taking pain medications; however, some recommendations can be made based on current law.

First, anyone reporting for an FFD test while symptomatic and/or on pain medications (including anti- inflammatory medications) should trigger a thorough medical evaluation to assess the nature of the symptoms and/or the basis for the medication. Whether to render a safety-related FFD test is entirely up to the evaluator. Safety is paramount: honor the “first do no harm” doctrine. If the painful condition is considered transitory, resolving in less than six months, the test recipient is technically not protected by the ADA. In such a case, the FFD evaluator would be justified to refuse to conduct the FFD until the person’s transitory medical condition has resolved and he or she is off pain medication.

In cases in which the FFD evaluator finds that the test recipient’s painful condition is chronic, expected to last longer than six months, the test recipient has ADA protection. The evaluator, in such cases, should complete a detailed medical examination and determine how to proceed based on the severity, irritability, and nature of the condition. These findings should be compared to any exertional demands from functional testing (if used) to determine whether there is significant risk in undergoing the FFD. If the evaluator’s opinion is that the FFD would be too risky to proceed, then the medical information forming the basis for the opinion is documented, and the employer should be notified to conduct an interactive accommodation review.

Obesity and FFD Examinations

The increasing obesity rate in the United States has affected work ability in a variety of ways. The question is: when is obesity a disability that must be accommodated under the ADA?

Fundamentally, employers and FFD evaluators cannot discriminate against a person based on obesity alone. In the EEOC’s ADA Compliance Manual, the issue of obesity is addressed as follows:

“Being overweight, in and of itself, is not generally an impairment…. On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment. In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment.”

In addition to not discriminating against someone because of weight alone, employers need to be careful of making any assumptions about obese individuals and their potential for health problems or Workers’ Compensation claims. When compared to employees who maintain the recommended weight, obese employees are known to have higher health care costs, file more Workers’ Compensation claims, and miss more work due to work-related injuries. However, caution must be taken in making any employment decisions based on these trends. Failing to hire someone because of concerns related to weight could indicate that the applicant was perceived or regarded as disabled—a violation of the ADA.

Any request for an accommodation from an obese employee, especially an employee with an underlying or resultant physiological disorder, should be regarded as a request for accommodation from a person with a disability. In such a case, as with all covered disabilities, the employer should

conduct an interactive accommodation review to determine whether reasonable accommodations exist.

In summary, the obese person must be given the same opportunity to pass a job-specific FFD examination as any other person. An obese person who fails to meet the essential job demands due to reduced physical capacities (such as reduced strength) unrelated to obesity is technically not considered disabled and thus not protected by ADA. However, job applicants who are severely obese and/or applicants who fail the FFD examination due to an impairment or disability related to the condition of obesity are protected by the ADA.

Disparate Impact of FFD Tests on Females and Older Workers

In general, the FFD testing process must be designed not only to protect against discrimination related to disabilities, but also to avoid discrimination on the basis of sex per Title VII of the Civil Rights Act of 1964 or age (40 and older) per the Age Discrimination in Employment Act of 1967. If FFD testing does result in disparities among employees by sex or age, the FFD examiner must be able to justify and defend his or her conclusions based on the essential job functions provided by the employer. In other words, the employer must show that the FFD tests reflect job demands that must be performed without assistance and that failure to perform such essential job tasks would mean that the job cannot be done or cause a serious interference with job production. In jobs with heavy essential job demands, a disparate impact on weaker individuals (due to gender and/or age) can be expected.

Pregnancy and FFD Testing

The Pregnancy Discrimination Act, an amendment of Title VII of the Civil Rights Act of 1978, provides women with federal employment protection from any form of employment discrimination related to pregnancy. Considering the effects of hormonal changes during pregnancy, the increased risk of miscarriage in the first trimester, changes to a woman’s body particularly during the second and third trimesters, and medical complications of pregnancy such as eclampsia, the risk of injury during an FFD evaluation can be a concern for the FFD evaluator.

Research on the safety of lifting while pregnant is relatively scarce, and existing studies do not take into consideration the variables of real-world lifting besides weight, such as the dimensions of the item lifted, the horizontal distance of the lift (reaching), the angle of rotation (twisting) during the lift, and so on.

Liability for injury to the fetus has no statute of limitation. Therefore, at the very minimum, a carefully conducted medical examination should clear a pregnant woman prior to undergoing an FFD test that requires significant physical exertion such as heavy lifting. However, there is another, safer, option that the evaluator and employer should consider. Since there is an inherent increased medical risk for a pregnant woman at any stage to become injured during physical exertion, one accommodation can involve the FFD evaluator conducting the examination without exertional functional tests. The employer could likewise accommodate the employee at work in the same fashion until after the pregnancy is over. After delivery and recovery from pregnancy, pending medical clearance, the employee should undergo a job-specific FFD test to determine whether she can begin working full duty, or if she will require continued accommodations.

Legal Aspects of FMLA and FFD Tests

It is not legal, under the FMLA, to require FFD evaluations as a condition for returning to work, unless there is a reasonable concern that an individual has work limitations after he or she returns from leave.

However, before restoring an employee to work following an FMLA leave, an employer may have a “uniformly applied policy or practice that requires all similarly situated employees (i.e., same occupation, same serious health condition)” to obtain and present a certification from the employee’s health care provider that the employee can resume work and can perform all of the essential functions of the job.

Genetic Information Nondiscrimination Act (GINA) of 2008

The protection of family medical information, including that obtained through genetic testing, is a particularly complex issue. EEOC guidance on how a family medical history can be used in FFD examinations is uncertain as of this writing. Obviously, in cases where family history (such as cardiovascular disease) clearly aggravates the risk of unsafe performance of an essential safety-sensitive task, there would seem to be an FFD evaluator obligation to ask all employees about family history of cardiovascular problems in the course of testing.

In general, the FFD evaluator should not obtain family medical history or other genetic information from a job applicant, even after an offer of hire is made, unless there is a defensible reason based on job safety. But since understanding family history is critical in examinations for certain high-risk jobs (for example, firefighters) the evaluator may proceed with acquiring family history as long as the family history information is not shared with the employer. It would not be appropriate, however, to inquire about family medical history that does not relate in any way to job safety. The EEOC is currently assessing these types of conflicts with GINA that relate to acquiring family history when that knowledge may prevent a person from facing direct threat of harm on the job. The bottom line is that family medical history information must be kept fully confidential, and not shared with the employer. Consequently, FFD evaluators should check all FFD-related documents provided to employers to ensure that there is no content related to family history or genetic testing.

HIPAA and FFD Testing

It is generally accepted that HIPAA regulations do not apply to disclosure of medical information collected by an employer in the course of administering post-offer FFD examinations for hiring. However, despite this general agreement, it is still advisable—and a court decision has supported this advice—for evaluators to follow HIPAA confidentiality guidelines when conducting FFD examinations in order to help protect employers from potential invasion of privacy lawsuits.

Summary of Key Federal Acts and Laws Affecting FFD Testing

• Title VII of the Civil Rights Act (1964)
• Age Discrimination in Employment Act (1967) Occupational Safety and Health Act (1970) Rehabilitation Act of 1973
• Pregnancy Discrimination Act—Amended Title VII of the Civil Rights Act, 1978) The Civil Service Reform Act of 1978
• Americans with Disabilities Act (1990) Family and Medical Leave FMLA (1993)
• Health Insurance Portability and Accountability Act (1996) ADA Amendments Act (2008)
• Genetic Information Nondiscrimination Act (2009) Collective Bargaining and Labor Contract Obligations

Implementation of a Fitness for Duty Testing Process

There is no set methodology to predicting fitness to perform job tasks over time based on a one-time examination. But taking the proper steps to carefully develop and design an FFD testing program is essential to conducting exams fairly to both employee and employer and to avoiding legal challenges. When implementing a legally compliant post-offer FFD program that includes medical monitoring and testing, steps should be taken to ensure that the testing process is:

1. Legal: FFD testing must be compliant with protection of private health information involving proper timing of inquiries, proper sequestration of medical information from employee records, and avoidance of acquisition of genetic information. FFD testing must be based on job necessity and must avoid discrimination.

2. Valid: FFD evaluators must ensure that any medical and/or functional test that can result in an adverse action against an employee is job related and performed for business necessity. Work- simulated functional tests should never exceed essential job demands.

3. Reliable: Testing methods that can result in any adverse action taken against an employee must have both intertester and intratester reliability to meet EEOC standards.

4. Safe: Testing methods must be standardized and conducted in a way that minimizes any risk of harm to the test recipient.

5. Effective: Testing must be able to determine whether a person is able to perform the essential duties or functions of a job without posing an imminent risk of injury to him- or herself, coworkers, and/or the community. Testing should identify health problems, measure preexisting impairments, and assess related functional inabilities in a way that provides an accurate means for the employer to assess the availability of reasonable accommodations for the person. The FFD exam can be instrumental in helping employers conduct accommodation reviews by providing critical information about actual work-related functional limitations. Therefore, FFD evaluations using job-simulated functional testing (for example, lift testing) should document carefully the maximum functional abilities to perform a job task even if the individual fails to meet the job requirement(s).

Administrative Guidelines

Although the primary burden of legal compliance in FFD programs falls on the employer, it is beneficial, if not imperative, that the evaluator help employers understand how to correctly implement and manage FFD programs for their employees. Administrative guidelines for implementation of an FFD program include:

1. Identification of Essential Job Demands: Prior to conducting an FFD examination, the evaluator should ask the employer for either a list of essential physical demands for each job to be tested or more detailed functional job descriptions containing this information. FFD evaluators must understand the essential physical demands of a job to render accurate opinions about work ability and to establish valid pass/fail test criteria when using any job-simulated functional capacity tests.

2. Creation of Job-Specific Test Protocols: The FFD evaluator should obtain or create FFD testing protocols that are specific for each job. For certain jobs and positions, the evaluator needs to be aware of federal FFD requirements (such as those of the Federal Motor Carrier Safety Administration, OSHA, Federal Aviation Authority, and U.S. Coast Guard) for certain jobs.

3. Validation of Test Protocols: Before rolling out FFD tests for an employer, the evaluator may find it beneficial and legally protective to assess the validity of any job-specific functional capacity tests being used. One way to test validity of these tests is simply to conduct the FFD tests on a sample of experienced current employees in each job, who in turn fill out questionnaires about how closely the test mirrors their work requirements. This method is common in heavy-manual-labor industries, such as energy and shipping, that typically test large numbers of employees. In short, pass/fail functional tests must closely resemble job duties. Any other tests, such as VO 2 max tests, push-ups or sit ups, planking, or isometric strength tests, are only defensible if they can logically predict a worker’s abilities.

These recommendations, aside from helping to form a productive and healthy workforce, are also important in avoiding discrimination. For example, using 30-pound weights in a test for a woman who lifts only 20 pounds at work could be easy grounds for a lawsuit. Functional testing not based on job-task simulations may also lead to disgruntled job applicants who do not perceive a connection between the test and job demands. The withdrawal of a job offer based    on a test failure that is not based on workplace reality is more likely to trigger an EEOC action than a test failure based on a valid functional test.

If functional tests are not needed, validity rests on the evaluator’s professional expertise, and no further validation requirements need to be fulfilled. For example, an FFD evaluator conducting an examination may discover through observation and/or X-rays that a recipient has a spinal defect that would expose him or her to a direct threat of harm if placed in a job requiring heavy lifting. The opinion rendering the person unfit to work (unless reasonable accommodation can be provided by the employer) is considered valid.

4. Administration of FFD Tests: When possible, administration of FFD tests using job-simulated functional testing, unless based on federal guidelines, should begin after the functional test protocols have been validated. Before administering post-offer job-specific functional tests, it is preferable to conduct a thorough medical history, physical examination, and any special diagnostic tests (such as radiographs, MRI, urinalysis, VO2 max, or pulmonary tests). Vital signs should be monitored during physically demanding tests for safety. Pass/fail criteria for the FFD test should be clearly defined and followed in a consistent manner.

5. Reporting FFD Test Outcomes: The FFD evaluator should determine how results of the FFD examination will be sent to human resource departments, such as by encrypted email or fax. Regardless of choice, the mechanism of communication should be secure. As with all medical records, medical information obtained through the FFD process and sent to the employer must be kept confidential and kept in a secure file separate from other employee records. When possible, it is advantageous for the FFD evaluator to maintain FFD reports on file for the employer.

Last, policies and procedures should be established for retesting anyone who fails an FFD test or is unable to complete it. When a job is available, the door should never be closed to retesting applicants who have been previously denied employment but have since corrected functional deficits or resolved medical conditions prohibiting their employment.