by John S. Gannon
Employers routinely ask employees to provide adequate documentation demonstrating that they can perform the essential functions of a job. That documentation may come in the form of physical or mental examinations—commonly referred to as fitness-for-duty examinations. However, problems arise when an employer disagrees with the physician who certifies the employee as “fit for duty.”
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Can the employer push back and request more extensive information, perhaps from a different physician? A better question might be: Should the employer push back? A recent lawsuit filed in the federal district court in Worcester highlights the dangers of demanding extensive documentation to justify an employee’s fitness for duty.
Impaired Employee with Top-Notch Performance
“Larry” worked for 26 years as a court security officer at a federal courthouse in Massachusetts. According to Larry, his performance as a security officer was “excellent.” Before working at the federal courthouse, he worked in law enforcement as a “highly decorated” officer with the Massachusetts State Police.
While working for the courthouse, Larry was diagnosed with sleep apnea, a sleeping disorder that can interrupt a person’s breathing while he sleeps. His physician recommended that he use a continuous positive airway pressure (CPAP) machine to help keep his breathing passages open while he sleeps. According to Larry, he complies with the treatment “every night” and has been asymptomatic for several years.
Larry lost his job at the federal courthouse in 2015 over what he claims were “impossible demands” made in connection with his treatment for sleep apnea. He responded by filing a lawsuit against his employer alleging that he was discriminated against in violation of the federal Americans with Disabilities Act (ADA) and Massachusetts Gen. L. Chapter 151B, the state law prohibiting employment discrimination, including discrimination based on a disability.
Larry’s lawsuit paints the following picture: During each of his 26 years with the courthouse, he was required to undergo an annual physical examination to establish that he was fit for duty as a court security officer. Each year, a physician approved by his employer certified that he was able to perform the essential functions of his job.
According to Larry, a healthcare professional reviewed the results of his annual physical in 2014. The reviewing physician, apparently concerned about his sleep apnea, refused to certify him as fit for duty. As a result, the employer requested more information from him about his sleep apnea and his compliance with the treatment.
Larry alleges in his lawsuit that the employer asked for data from his CPAP machine that demonstrated he was complying with his sleep apnea treatment. Specifically, the employer asked for a full year of data that showed he was using his CPAP machine as prescribed. The only problem, according to him, was that his CPAP machine didn’t have the capability of storing the data. In response, the employer demanded that he get a new CPAP machine. Unfortunately, his insurance wouldn’t cover a new machine.
Larry claims that he attempted to satisfy his employer’s demand by offering a notarized log showing 30 days of compliance with the CPAP machine, along with a statement from his doctor certifying that he was following the prescribed treatment. The employer rejected that documentation and later fired him based on the conclusion that he was medically disqualified from working as a court security officer.
Too Early to Tell
This lawsuit is still in its infancy. Larry’s employer has yet to tell its side of the story, so it’s difficult to predict how the lawsuit will unfold. Still, it raises questions about the adequacy of the documentation necessary to show that an employee is truly fit for duty and can perform the essential functions of his job.
In this case, at least according to the preliminary allegations, the employer didn’t accept medical documentation that suggested the employee was healthy and following his course of treatment for sleep apnea. Instead, it allegedly asked for burdensome medical information that he was unable to produce and demanded that he change his prescribed course of treatment by getting a new CPAP machine.
Although the employer’s motivation—ensuring that officers are physically able to perform their duties—appears genuine, you have to wonder whether it went too far by requesting that Larry “prove” with hard data that he was using his CPAP machine.
The rules applicable to physical and mental examinations are extensive and vary considerably depending on whether the person is a candidate for hire or a current employee. Be sure to check with experienced employment counsel before rejecting a job applicant or denying a return to work in response to the results of a medical examination.
John Gannon is an associate at the firm of Skoler, Abbott & Presser, P.C and an editor of Massachusetts Employment Law Letter . John can be reached at 413-737-4753 or jgannon@skoler-abbott.com.