It is not uncommon for an injured worker to request that his workers' compensation doctor return him to work with a “full-duty" release so he get back to his pre-injury employment. This is often a good sign of a motivated employee.
However, there are often instances when the employee requests the full-duty work release when the employee is clearly not ready to safely return back to his pre-injury position. For the purposes of returning the employee back to work, an employer is not dependent on only the opinions of those medical providers the injured employee has seen through the workers' compensation system.
An additional method an employer may lawfully consider is to require an employee who is returning from an absence due to injury or illness to attend a “Fitness-for-Duty" examination with a physician chosen and paid for by the employer in order to determine if the employee can perform the essential job functions of the position.
The United States Equal Employment Opportunity Commission's (“EEOC") regulations make it clear that an employer can require an employee to submit to a medical examination after the start of employment if the employer can show the medical examination is job related and consistent with business necessity. 29 C.F.R. §1630.14(c).
Additionally, the employer can require lawful Post-Work Accident Medical Examinations:
- To determine if an employee is a direct threat to the health and safety of themselves or other employees in the workplace. 29 C.F.R. §1630.15(b)(2);
- To determine if an employee is unable to perform the essential job functions because of a medical condition (this inquiry must be made based on a reasonable belief that the employee cannot perform the essential functions). 29 C.F.R. §1630.14(c); or
- Where an employee has requested accommodations and the need for the accommodation is not obvious.
Employer Must Demonstrate that a Post-Injury Examination is lawful by demonstrating:
- A medical examination is required to determine whether an employee can perform his job duties;
- The employer has an objectively reasonable, non-discriminatory and non-retaliatory reason to question the employee's ability to perform his job functions; and
- The examination is a less intrusive means of determining whether the employee can perform his job functions than other options.
Remember that it is important that you make this work rule known to all and administer it to all without exception.
