Annual fitness-for-duty exams generally not allowed

Q: We want to make sure our employees remain healthy and able to do their jobs. Can we require them to submit to an annual fitness-for-duty exam?

A: No. Absent specific performance related concerns or an observable risk of harm, the Americans with Disabilities Act (ADA) prevents you from requiring that your employees submit to medical examinations. A recent EEOC informal discussion letter reminds employers that they are responsible for the questions asked in employment-related medical exams and must ensure that their medical providers are not asking for information that would violate the ADA or the Genetic Information Nondiscrimination Act (GINA). Questions like “have you or any of your immediate family ever had any of the following medical conditions” or “in the past 12 months, have you seen a doctor for anything other than routine checkups?” are not allowed. If you regularly work with a particular physician or clinic for fitness-for-duty assessments, make sure they know to avoid such questions as part of the exam. Also, see our Model Form, “Fitness-for-Duty Report” (1880).