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Protect Your Protections
Mar 11, 2019


By:  Michael John Hostler, Attorney

The Americans with Disability Act (“ADA”) demands that when an employer orders an employee to submit to a medical and/or psychological examination to establish the employee’s fitness-for-duty, the employer is responsible for the costs of the ordered examinations.

Should the examiner’s report find the employee is not fit-for-duty, the ADA provides that the employee may obtain a second opinion, from a practitioner of his choice, at the employee’s expense.

The U.S. Equal Employment Opportunity Commission’s guidance on Disability Inquiries and Medical Examinations at question 12:

  1. May an employer require that an employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer’s choice?

Yes. The determination that an employee poses a direct threat must be based on an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence.  To meet this burden, an employer may want to have the employee examined by a health care professional of its choice who has expertise in the employee’s specific  condition and can provide medical information that allows the employer to determine the effects of the condition on the employee’s ability to perform his/her job. Any medical examination, however, must be limited to determining whether the employee can perform his/her job without posing a direct threat, with or without reasonable accommodation. An employer also must pay all costs associated with the employee’s visit(s) to its health care professional.

In essence, the employer must be able to reasonably articulate why they feel you are not capable of performing your essential job functions.  An employer demanding an employee be examined because he cannot run one mile in under four minutes is not reasonable.  However, expecting a patrol officer to get in and out of the cruiser is arguably reasonable.

The determination that an employee poses a direct threat does not necessarily mean you are about to go on a murderous rampage.  Most often fitness-for-duty examinations are ordered because the employer perceives your medical and/or psychological condition is affecting your ability to meet the essential job functions required and that your inability may result in death or injury to yourself, fellow employees and/or the general public.

The law provides that the medical/psychological examinations can only be focused on the employee’s ability to perform the job without being a threat to others, with or without reasonable accommodation.  Unfortunately, some employers would abuse their authority by sending an employee for both a medical and psychological examination, even though their stated “reasonable” concern was, for example, to verify the employee’s broken leg had properly healed.

Additionally, The United States Department of Labor provides:

“An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee’s and the employer’s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer’s expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee. (see: The “Certification of HealthCare Provider.  http://www.dol.gov/whd/fmla/appendixf.pdf ).

When you present a “return to work” clearance from your own doctor, the Department of Labor provides that the employer may send you to their doctor for a second opinion, just as you could get your own second opinion “at your expense”. The rules mandate that if the employer requests a second opinion, the employer “must pay” the expenses. Additionally, if a third opinion is needed, the law requires that the third care provider must be approved jointly by the employer and the employee, at the employer’s expense.

We just witnessed our Governor, along with the MAJORITY of our State Representatives and State Senators, attempt to strip us of protections we had fought long and hard to earn.  The protections afforded to the American workers through the ADA, FMLA, Department of Labor, EEOC, (both State and Federal) can be changed as well.   Many of you know under President Bush our Congress revamped the FMLA, with most changes being injurious to the employee.

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10147 Royalton Rd
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