Americans with Disabilities Act: What You Can Do When an Employee Seems Unfit for Work by Jim Guttmann, on July 06, 2016 Considering the nature of the work that some employees perform, you may be rightfully concerned when an employee’s deteriorating health or apparent side effects of medications pose a potential safety hazard in the workplace. For instance, some employees use powerful prescription drugs for pain, anxiety and other maladies and these same individuals may report to work with potent drugs in their systems. An Employer’s Dilemma Under these circumstances, it can create quite a quandary when trying to balance the employee’s right to privacy against your interest in providing a safe work environment. In fact, you may be hesitant to deal with this matter at all and for good reason. Christopher J. Kuczynski, assistant legal counsel with the Equal Employment Opportunity Commission’s policy division for the Americans with Disabilities Act said, “The employer must have reasonable belief the person is unable to do the job or poses a threat based on a medical condition.” The only recognized exceptions to that general rule are police officers, firefighters and others in public safety jobs. They can be required to self-report the use of prescription medication if their inability or impaired ability to perform their job functions would result in a direct threat. The Road to a Solution An acceptable way in which you can address your concerns in a proactive manner is by asking the employee to discuss his/her health condition with a physician and obtain a statement from the doctor; however, it is not suggested that you merely have the employee go to a doctor and return with a brief note. In that scenario, your employee may misrepresent the requirements of the job in order to get a full release and may return with a note that simply states “light duty” which leaves room for a lot of interpretation. Instead, the recommended approach involves a process by which some advanced planning and careful communication takes place with the employee. Here's how to get started: 1. Job Description First, you should make certain there is a thorough and accurate job description for the employee’s position that goes into the physical/mental demands of the job and working conditions. 2. Physical Capacity Form Next, you should develop a physical capacity evaluation form. This form would be completed by the attending physician after reviewing the job description. In fact, at the top of this form it should state that the physician has read the employee’s job description which addresses those physical/mental requirements and working conditions. The form may then ask the doctor to indicate any work restrictions considering such factors as whether the job is full-time or part-time; how much standing, sitting, lifting, bending, squatting, climbing it entails; any hazardous aspects of the job and whether there is a need for tolerance to heat/cold, dust, fumes, dampness, height, etc. You may also want to include a question about whether the employee is involved with treatment and/or medications that might affect his/her ability to work. Finally, the form should ask the physician how long any work restriction is likely to remain in effect. 3. Communication Next is the all-important meeting with the employee - Remember, communication is key. Their supervisor must first assure the employee that the company cares about his/her well-being and work place safety is of the utmost concern. Also, as a responsible employer, remind them that the company would not want to ask the employee to do something that his/her doctor wouldn’t recommend or approve. This approach takes the discussion out of the realm of what the employee thinks he/she can do vs. what the supervisor thinks. It is left up to the physician to make that determination. 4. Assessment Once the employee returns with the completed physical capacity evaluation form, you can make a far better assessment of appropriate actions because you've sought guidance from a medical expert rather than rely on the more subjective judgment of the supervisor or employee. With the physical capacity evaluation form in hand, you can now determine (1) if the employee can still perform the essential functions of the job, (2) if so, whether there is a need for accommodations, and (3) if accommodations are needed, would those accommodations be reasonable for the employer? Going carefully through these steps brings some degree of objectivity to the outcome which otherwise could become a very questionable and highly subjective determination. On occasion, the physician may state that the employee is able to fully perform the essential functions of the job without any required accommodations. If that is the case, you (as the employer) can take some comfort in knowing that you did your “due diligence” – even if you have some reservations about what the doctor has stated. If the need arises in the future, you can always have the employee check back with the physician if you believe the situation has changed significantly. Seek Guidance from a Human Resources Professional or Employment Law Attorney Due to the sensitivity of these situations in light of the Americans with Disabilities Act, we highly encourage you to work closely with a Human Resources Professional or Employment Law Attorney throughout this process. When you have concerns about whether an employee is fit for duty or can perform the work safely, don’t hesitate to seek out the support and assistance of these qualified professionals. Jim Guttmann As a LandrumHR Senior Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 30 years of HR generalist experience. He holds a Masters in Business Administration from Florida State University and is an active member of the Raleigh-Wake Human Resources Management Association in North Carolina. Jim is also certified as a County Mediator in the State of Florida and in the administration of the Myers Briggs Type Indicator (MBTI). Jim is also very involved in his church community and is commissioned as Stephen Ministry Leader. View more blogs by Jim Guttmann 0 Related Articles The Ten Commandments of Hiring Are You Using the New, 2017 I-9 Form? Cursing in the Workplace: Is it Legal? How Much Do You Know About Religion in the Workplace? Take This Quiz To Find Out!