Fitness-for-Duty (FFD) exams are specialized medical evaluations used to determine if an employee can perform the essential functions of a job without risking injury to themselves or co-workers. It is also used as a “Return-to-Work Evaluation” after employees have been off work due to a non-work or work-related condition or illness.
There is a tremendous value for an employer or their agents when retaining Dr. Fletcher. Not only is Dr. Fletcher an occupational medicine physician, but he has training in ergonomic assessments, can make evaluations regarding the physical demands of a specific job, can develop a specific medical exam to address an employee’s ability to perform the essential job functions at the time of hire (post-offer physical) or at the time of return to work (FFD), and whether or not a reasonable accommodation should or can be made. Under the Americans with Disabilities Act Amendments Act (ADAAA) and Family Medical Leave Act (FMLA), the FFD examination must be specific to the job in question and must arise out of a business necessity. See 29 CFR § 825.312 FMLA Fitness-for-duty certification.
Occupational medicine physicians such as Dr. Fletcher, performing these highly complex evaluations, must have specific knowledge regarding the physical demands of specific jobs, must have the ability to obtain the appropriate releases from an employee in order to release information to an employer, and must make certain that the medical information being released is provided to only those who are entitled to same.
When Should an Employer Set Up a FFD Evaluation?
- When an employee is off work five or more days and desires to return to work after such absence;
- During a job transfer to determine whether they can meet the essential job functions of the new position;
- When an employee develops a physical or mental medical condition which could affect job performance; and
- In reasonable cause situations with indicators of impaired job performance.
Why a FFD Exam?
- Even when a patient’s illness or injury has not completely resolved and potentially poses a risk in the workplace, the treating physician will release a patient back to work because the patient requests the return for economic reasons; yet is not fit to return back to work.
- Premature releases back to work may be inappropriate because the treating physician may have limited to no knowledge regarding the patient’s job duties and suddenly a non-work-related issue is turned into a work-related problem.
- A FFD exam is a sound risk management strategy that protects the employer (and the employee) by ensuring that return-to-work is appropriate.
FFD Exams for Status Check on Employees with Prolonged Absences
- Another reason for FFD exams is to evaluate an employee who has been off work for a long period of time with no projected return-to-work date.
- A FFD exam can provide insight to the functionality and prognosis of an employee off work for a prolonged absence.
- A periodic FFD exam for an employee on extended indefinite leave can provide insight into the legitimacy of such absence.
- Based on physical examination, review of the medical records, and the individual’s self-reported information regarding their current status, the examiner can make a determination regarding the current level of function for an employee out on an extended leave of absence.
Dr. Fletcher’s Comprehensive Approach to Performing FFD Exams:
- Obtains a thorough understanding of the employees’ essential job functions and physical demands;
- Identifies and answers the reason(s) why the referral source set up the exam;
- Establishes the expectations to the type of report or information that should be shared with the referral source;
- Collects and reviews pertinent medical records;
- Develops a FFD evaluation exam process that is specific to the employee’s job in question;
- Outlines the ground rules on confidentiality of information to the patient and what exactly what will be shared with the employer;
- Takes a comprehensive medical history with a focus on the current problem and how it may be related to the essential functions of the job;
- Conducts a thorough physical and/or mental status examination;
- Obtains the appropriate release of medical information and permission to speak to treating physicians, if necessary;
- Obtains and reviews medical records;
- Accesses the State’s Prescription Monitoring Program (PMP) System to determine if the employee is taking a controlled substance;
- Considers drug and alcohol screening, if appropriate;
- Coordinates additional testing, such as functional capacity evaluation (FCE) or neuropsychological (NP) testing, if appropriate;
- Determines whether a job-site evaluation is needed to further access the ergonomic demands or physical hazards of a job, if appropriate;
- Outlines additional steps or testing needed to arrive at a final opinion;
- Prepares a comprehensive report that details the FFD exam process, opinions on return-to-work, and the basis for such opinions.
The only written communication that Dr. Fletcher provides is whether the employee is fit-for-duty, conditionally fit-for-duty, or not fit-for-duty. The detailed confidential fitness-for-duty evaluation report can only be released with written authorization from the employee or in response to a proper legal request.
FFD Exams for Trucking Companies
Most trucking companies are uninformed about the requirements of 49 C.F.R §391.45f in that the statute mandates FFD examinations for drivers who develop medical issues in between their periodic medical certification exams.
49 C.F.R §391.45 imposes a continuing obligation upon commercial motor vehicle carriers and drivers to seek up-dated medical examinations:
“The following persons must be medically examined and certified… as physically qualified to operate a commercial motor vehicle:
- (a) Any person who has not been medically examined and certified as physically qualified to operate a commercial motor vehicle;
- (b) Any driver who has not been medically examined and certified as qualified to operate a commercial motor vehicle during the preceding 24 months, unless the driver is required to be examined and certified in accordance with paragraph (c), (d), (e), (f), or (g) of this section;
- (f) Any driver whose ability to perform his or her normal duties has been impaired by a physical or mental injury or disease;”
Dr. Fletcher serves as an expert witness in cases involving commercial motor vehicle carriers. This experience allows Dr. Fletcher to remain abreast of the current state of the law and how the courts across the United States are interpreting the statute. Recently, a Kentucky Circuit Court ruled in a case where Dr. Fletcher served as the plaintiff’s expert witness that the Defendant trucking company “defied the spirit and letter of the FMCSA Regulations (49 C.F.R. §391.45) and the use of the word ‘and’ makes clear the twenty-four month period in which a medical examiner’s certificate is typically valid does not defeat or limit a drivers’ continuing obligation to be physically qualified to operate a commercial motor vehicle and the ongoing responsibility of the trucking company to only place medically qualified drivers on the road.”
In this case, the Defendant trucking company failed to send its driver for a FFD examination when he had missed work and did not investigate the reasons why he was not fit to drive.
(Tonja Statsmann vs. Kyle Argenbright, et al. Commonwealth of Kentucky, Bullitt Circuit Court, Case No. 16-ci-00118, March 14, 2017.)
Why Dr. Fletcher?
Dr. Fletcher understands complicated fitness-for-duty and return-to-work issues. He explains in his confidential written reports how he arrives at his medical conclusions on the ability to work and is prepared to defend his expert opinions at deposition and/or trial, when necessary.
For Dr. Fletcher, one of the key elements to his credibility is being a full-time practicing occupational medicine specialist with admitting privileges to OSF Heart of Mary Medical Center (HMMC) in Urbana, IL. In addition to these hospital admitting privileges, Dr. Fletcher manages complex workers’ compensation and personal injury cases as the primary gatekeeper, from the start of each case until the injured patient has reached maximum medical improvement (MMI). In each case, Dr. Fletcher is responsible for making clinical decisions about the injured or ill person’s ability to work.
Since 1986, Dr. Fletcher has treated more than 19,000 injured persons and performed more than 20,000 Commercial Motor Vehicle Driver Exams where the decision of whether a driver was fit to drive was at issue. For three decades, Dr. Fletcher has been a Federal Aviation Administration (FAA) Senior Aviation Medical Examiner (AME) which has provided him with additional training and experience to make highly complex decisions about return to work. This vast experience provides him with a tremendous amount of credibility in making determinations about fitness-for-duty and return-to-work.
Several of Dr. Fletcher’s fitness-for-duty evaluations have been cited in published case law. One example is the case of Koshinski vs. Decatur Foundry (Seventh Circuit Court) 1998. On February 20, 1996 and March 28, 1996, Dr. Fletcher conducted fitness-for-duty examinations on Robert C. Koshinski, Jr. who operated a cupola for Decatur Foundry, Inc., a small, family-run business in Decatur, Illinois. Dr. Fletcher testified regarding the concept of direct threat concerning this employee with osteoarthritis of the wrist, who could no longer perform essential functions of the job, with or without an accommodation. As cited in the 7th Circuit Court decision:
“This appeal raises a unique and nettlesome question: May an employer use the ADA as a sword to keep off the job an employee who is qualified to do that job now, but will, at some future point, become unable to do it due to a degenerative disease, which will be exacerbated by the employee’s continued employment? The question requires a balancing of, on the one hand, the employer’s interest in protecting its employees from injury and itself from liability and, on the other, a disabled employee’s interest in earning a living while he can, until he becomes utterly unable to work. It’s a tough question.”
The 7th Circuit ruled that the employer did not discriminate against Koshinski when it terminated his employment because of Dr. Fletcher’s assessment that there would be a direct threat to his health if he did a molder job at Decatur Foundry that would violate his permanent work restrictions of avoiding vibration and high force/high frequency repetitive job tasks that were recommended by his treating physician.
The fitness-for-duty and return-to-work evaluations that Dr. Fletcher conducts are done in compliance with regulatory guidelines of the Americans with Disabilities Act Amendments Act (ADAAA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), as well as the guidelines of the Equal Employment Opportunity Commission (EEOC).
If a fitness-for-duty evaluation by Dr. Fletcher concludes that an employee is not able to perform the essential functions of his or her position, he will, upon request, work with the employee and employer to determine if there is a reasonable accommodation that will allow the employee to continue working. If an appropriate accommodation cannot be made, other options may be considered (for example, Dr. Fletcher can assist the individual to apply for long term disability (LTD) or Social Security Disability) and communicated by Dr. Fletcher to the referral source