When a federal employee is placed on leave involuntarily because of a medical condition, this is known as “enforced leave.” This is leave that is beyond the employee’s control. Often this is initiated by a “medical evaluation” where the employing agency sends an employee for a medical evaluation to determine whether he is “fit-for-duty” or subjects him to a “fitness-for-duty” test (or “FFD”).
These FFDs are problematic and require a lot of justification. Unfortunately, the are often unjustified. Here is a brief summary of federal employees’ rights and some case law. Talk to a lawyer if you are facing an issue like this. Time may be limited for you to act.
Medical Evaluations are Subject to Heightened Scrutiny
Medical evaluations are difficult for agencies to justify for current employees. A federal agency may only require that an employee undergo a medical evaluation or “fitness-for-duty” evaluation if the evaluation is job-related and consistent with business necessity.” 29 CFR 1630.14 (c).
This means that it has reason to believe, based on objective evidence, that there is a medical reason related to changes in the employees job performance such that the employee is no longer able to perform the essential functions of the job, or if he may pose a “direct threat” to the safety of others. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA). The EEOC’s guidance specifically states:
the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of his or her job or pose a direct threat because of a medical condition.Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).
The essential functions of a particular job are usually referred to as the reason that a person is hired. For example, a surgeon would be expected to be able to perform surgery. If he sustains a career-ending hand injury, then presumably he is no longer able to perform the essential functions of the position of a surgeon. but it also depends on what the actual position requires.
If the surgeon is employed mainly performing administrative tasks or a management position, it is unlikely that performing surgery would be an essential function of the position. This is particularly true where the surgeon was expected to assign subordinates this work.
A “direct threat” is where the employee poses “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 CFR 1630.2 (r). This must be based on an individualized assessment.
‘Significant risk’ and ‘substantial harm’ are hard to define, but they are not minimal. There must be some real risk of real harm, not some fear of distant and unlikely scenarios that could potentially lead to harm. Unfortunately, too often employees are subjected to medical evaluations simply because
Justification based on Evidence
In order for the agency to be justified in sending a current employee for a medical evaluation or fitness for duty examination, the employing agency must have a reason to do so based on objective evidence.
The EEOC’s guidance states:
Objective evidence is reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will interfere with his ability to perform essential job functions or will result in direct threat.Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).
This means more than just a bare desire to find something wrong with the employee. There typically must be an evaluation of evidence that leads to a reasonable belief on the part of the agency that an employee is having difficulty at work due to a medical condition.
When Fitness For Duty Evaluations are Justified
This means that some evaluations are permissible and some not. Here are some cases where the EEOC has found on both sides.
An FFD can be Weaponize as a Form of Retaliation or Harassment
In Giselle W. v. Department of Justice, Federal Bureau of Prisons, EEOC No. 0120162671 (EEOC 2018), the employee had a restricted airway due to asthma. Despite giving the agency “extensive medical documentation” of her condition and need to work outside of her current building, the agency still sent her for an FFD.
The purpose of the FFD was to determine whether the employee could work “without any restrictions” despite that the agency had already accommodated her and made no attempt to remedy the physical issues causing the asthma issues.
The EEOC found that the agency was essentially trying to punish the employee for requesting accommodations and forcing the agency to provide these:
the record clearly reflects that the Agency initiated the FFDE because it did not believe Complainant or her Pulmonologist’s assertion that Complainant was unable to perform her duties from the Warden’s Office due to her condition.Giselle W. v. Department of Justice, Federal Bureau of Prisons, EEOC No. 0120162671 (EEOC 2018),
An FFD is an invasive procedure that forces the employee to be subjected to probing medical questions or examinations. Particularly where the employee had already provided medical information to substantiate her need for an accommodation, an FFD can be completely unnecessary and used as a tool to punish those who need accommodations. Doing so is illegal under the ADA and Rehabilitation Act.
Physical Conditions Can Point to the Need for Further Evaluation
On the other hand, where there is a demonstrated issue or the employee admits there is an issue that could be problematic for performing the essential functions of the job, an FFD can be justified.
For example, in Addison v. Department of Veterans Affairs, 111 LRP 57036 , EEOC No. 0120081932 (EEOC OFO 2011), the employee admitted she suffered from blackouts that could occur during the workday. The EEOC found that this information justified an FFD, as the employee could black out during a critical moment with a patient and cause harm to herself or others.
Where there is a reasonable possibility of harm that could arise from the medical condition, the FFD can be legally justified. This can be true even if the outcome of the FFD does not demonstrate that the employee is a direct threat.
What You Can Do About It – Protecting your Job
The FFD process is easily abused. The cases demonstrate numerous examples of this. It is also illegal to abuse FFDs.
As a federal employee, you have a number of options. Foremost, you can file a complaint with the EEO office and pursue an investigation.
If you’re being prevented from working because of an FFD, that may have been illegally obtained and unjustified. If you’re no longer allowed to work and it exceeds 14 days, you may be able to file an appeal with the MSPB (or pursue a case before the EEOC). There may be due process concerns as well, because the Agency has to issue a disciplinary action under Chapter 75 before it take can prevent an employee from working (that is, suspend them). Often these ‘suspensions’ are unjustified.
Contact an attorney with experience in this area if you have additional questions. This area is not well understood by agency attorneys and private attorneys alike, so make sure you are talking to someone who has dealt with such cases before.