Fitness for Duty Testing and the ADA

 “Fitness for duty testing” can be a very stressful phrase when you’re disabled. But depending on your limitations and the job requirements, you may not need to be so concerned. Disabled job applicants have some legal protections that should give you a fair opportunity to compete for a job opening.

What is the ADA?

The Americans with Disabilities Act (ADA) is a federal law providing some protections for job applicants and employees who are disabled, have a record of a disability, are perceived by others to be disabled, or are associated with someone who’s disabled (maybe a spouse). There is a similar State of New Jersey statute, the Law Against Discrimination (“LAD”), discussed briefly below, which provides anti-discrimination relief in appropriate cases.

Thanks to the ADA, if an employer is large enough (15 or more employees), it’s illegal to discriminate against a disabled job applicant or employee, just like it’s illegal to take actions against someone because of their age, color, race, sex, religion, or national origin.

The ADA adds another layer of protection because employers are required to make reasonable accommodations so a disabled employee can perform a job’s essential functions. The accommodations need not be made if they pose undue hardship to the employer.

If there’s a good-faith disagreement on whether a proposed accommodation is reasonable or would be an undue hardship, ideally, it should be worked out between the parties in what is called an “interactive process.”

New Jersey’s LAD covers all employers, while the ADA applies to employers with 15 or more employees.

Can I Be Asked If I Can Do the Job I’m Applying For?

Before being offered a job, you can be asked if you can perform a position’s essential functions with or without reasonable accommodation. An essential function is a basic job duty that’s integral to the position. When deciding if a function is essential, you should consider the following:

• Whether the position exists so the function can be performed
• How many other employees are available to perform the function, or how many can share this function, and
• How much expertise or skill is needed to perform the function

Evidence that a function is essential could be:

• It’s covered in a job description and discussed in job interviews
• The experience of present or past job holders
• The time spent performing the function
• What will happen if an employee doesn’t perform the function, and
• A collective bargaining agreement covers it

Generally, employers are given some leeway in deciding if a function is essential, but a judge or jury won't just take their word for it.

What is Fitness for Duty Testing?

It’s an employer-requested evaluation of a job candidate’s or an employee’s physical, mental, and psychological abilities to perform a job. It can be done with an employee returning to work or offered a job.

A job offer can’t be made subject to passing such an exam, but a job offer can be withdrawn if the person isn’t fit for duty. If an employer uses an exam for new hires, all of them should be examined. Making an exception and requiring an individual to take an exam shows the potential employer perceives that person as disabled, and it creates an additional barrier to employment that those not considered disabled can avoid.

A licensed healthcare professional practitioner should perform the evaluation. Tests must be consistent with business necessity and be job-related, so people don’t lose job opportunities for reasons unrelated to position requirements.

What Can I Do If I’m Found Not Fit for Duty?

The reality is that you may not be fit for duty. As much as you may want this job, if you’re not capable of performing its essential functions (with or without reasonable accommodation), then you may legitimately not be hired. In that case, you may have just avoided a lot of heartache and grief trying to hold onto a job that you were eventually going to lose. If you’re a job candidate, you’ll need to find a job that’s a better fit for you. If you’re returning to work after an illness or injury, you may qualify for Social Security Disability Insurance benefits or private disability insurance payments (or both).

The reality might also be that you are fit for duty, but the part of the job you have trouble with is not an essential function. You can do the job with accommodation that’s reasonable and not an undue burden on the employer. These issues are fact-specific. They have to do with the nature of the job, the extent of your disability, and a possible accommodation’s impact on the workplace.

If you find yourself in this situation, call our office so we can discuss all the issues, the employer’s responsibilities, and how the law may apply in your situation. These scenarios are rarely black and white, with a person clearly able to do the job and an employer obviously making a biased decision. Most of the time, it’s shades of grey. But sometimes the grey is so dark it appears that something isn’t right.

Has Your Employer Illegally Discriminated Against You?

Do you have questions or concerns about the results of a fitness for duty exam? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call us today. You’ll be glad you did.