One of our employees has been prescribed a powerful medication. Can we ask her to take a fitness-for-duty evaluation to determine if the drug decreases her ability to perform the job’s duties? Also, her situation is making me worried that other employees might be in the same boat. Can we require employees to divulge prescription medications they are taking or any illnesses or injuries that might interfere with doing their jobs? — B.R. in L.A.
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For the answer to this tricky question, we turned to Allen M. Kato.
An employer may generally require an employee to submit to a fitness-for-duty medical examination if there is reasonable suspicion to believe the employee cannot perform the essential job functions. However, an employer should not require an employee to divulge the specific medication he or she is taking or the illness or injury that might be affecting his or her ability to perform the job.
The federal Americans with Disabilities Act and the California Fair Employment and Housing Act prohibit medical inquiries and exams during employment, except when the inquiry or examination is job-related and consistent with business necessity. The legal standard is met if the employer has a reasonable belief that the employee’s ability to perform the essential job functions is impaired, or the employee poses a direct threat to health or safety. Before requiring the employee to have a medical exam to test the employee’s ability to perform the job, we recommend that the employer ask the employee about his or her ability to perform the essential functions and allow the employee to have his or her physician provide necessary information to the employer. If the employee does not provide all the needed information, the employer should require a fitness-for-duty exam by the employer’s physician.
Conversely, the employer should not force an employee to divulge the medication he or she is taking or the illness or injury that may be affecting his or her ability to perform the job. An employer should only require an employee to notify the employer if prescribed medication or a medical condition is affecting his or her ability to perform the job. Then, the employer may require the employee to provide a fitness-for-duty certification from his or her own physician, and if doubt remains, to submit to a medical exam by the employer’s physician. Normally, this process can be accomplished without the employee having to disclose the medication, injury, or illness affecting his or her ability to perform the job.
Allen M. Kato is an associate at the San Francisco office of law firm Fenwick & West.