Can An Employer Require Medical Exams When An Employee Returns From Leave?

This is a standard weekly question posed by clients. The scenario is always the same. “An employee has been out on a leave (non work-related) due to a medical condition. Can we send the person to our doctor to get a medical clearance to return to work?”

The quick and easy answer is that under both the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), employers cannot require employees returning from leave to submit to a medical examination unless such an examination is “job-related and consistent with business necessity.” You can test employees to ensure that they are capable of performing their essential job functions but it’s easy to blur the line between a “job functions test” and a medical examination. One employer (non-client!) found out the hard way!

A female employee was out on a medical leave of absence for almost two years because of an injury to her knees. When her doctor cleared her to return to work, with permanent restrictions, the employer required her to undergo a “physical capacity evaluation” with an outside occupational rehab specialist to determine which essential job functions she could perform. The specialist required the employee to undergo two days of tests and made in-depth inquiry into her mental, emotional, and physical status. After the tests were completed it was determined that the employee could not perform any essential job function, and the employer terminated her. The employee sued alleging that her employer made her undergo a medical examination that was not job-related and consistent with business necessity. The trial court dismissed the suit. Unfortunately, and once again, the Ninth Court Circuit of Appeals disagreed ruling that the examination given the employee was not a physical capacity evaluation but in fact was a medical examination. The higher court sent the case back down to the lower court to determine if the examination was justified. 

I will keep you posted on the outcome but for now be very cautious about asking, or demanding, that returning employees from a leave of absence take a physical by the company’s doctor. Keep in mind that work related injuries are different. The employee is normally already treating with the company doctor and will obviously get a return to work clearance before returning.