This Guidance is to ensure that local union leaders, reps, and staff know the rules governing fitness-for-duty testing.
When an employer mandates employee medical tests or inquiries, this always violates the Americans with Disabilities Act (ADA) unless the tests are both job-related and satisfy a business necessity.
This restriction applies to all employees, not only those with a disability. The restriction additionally applies to several types of fitness-for-duty tests: mental health tests; vision tests; blood, urine, and breath analysis tests; motor function tests; psychological tests; x-rays; and generally anything related to the employee’s physical or mental health.
However, the restriction does not apply to tests for the illegal use of drugs, polygraph tests, personality tests, physical agility, and/or tests, which measure the employee’s physical ability to perform job tasks (e.g. heavy lifting), as long as such tests do not include examinations which could be considered medical in nature.
How does an employer meet the “business necessity” and “job-related tests?
An employer can ask an employee to undergo fitness-for-duty testing when it has a reasonable belief that: (1) the employee’s ability to perform essential functions of the job is impaired by a medical condition; or (2) the employee poses a direct threat due to a medical condition.
The employer does not possess the necessary reasonable belief for (1) or (2) if it is without objective evidence of the medical condition. However, the employer does possess objective evidence if it has observed symptoms constituting a direct threat or an impairment of the employee’s ability to perform job functions, has actual knowledge of the medical condition, or has received reliable information from a credible third party.
Nonetheless, if the evidence obtained does not demonstrate that the employee either poses a direct threat to others, or that the employee’s ability to perform essential job functions is impaired; the employer cannot submit the employee to fitness-for-duty testing.