Fitness for Duty - NEED ANSWERS ASAP

Elizabeth

One of our 'safety sensitive' employees has been diagnosed by her family physician with depression. We are concerned that she may even be suicidal. Although the family doctor says she can return to work, we feel that a family physician is not necessarily qualified to, first, diagnose her depression and, second, to release her to work with that condition. We would like to send her for a 'Fitness for Duty' psychological exam prior to allowing her to return to work. She is due to come back tomorrow. I want to call her today and tell her that we have scheduled an appointment with the psychologist (hopefully this week) and that she will be on paid Administrative Leave until the psychologist gives her a full release. She is in a union, but I don't think anything in the contract prevents this.

Is this legal? We've actually done it once or twice in the not-too-distant past, but that was before I was here and I want to be sure that it is legal to do this before I send her.

Don D

"We are concerned that she may be suicidal", is a bit bothersome. You've pretty much qualified her automatically for ADA protection, regardless of her condition, BECAUSE you REGARD her to be in a grouping that typically qualifies. But, that won't affect whether or not you should or could send her for evaluation. After all, you are making the decision based on the employer's doubt that a GP can adequately diagnose, not because of some perception the staff may have about her stability. Be careful. In this state it is perfectly legal, and common, for an employer to require a second evaluation (fitness for duty analysis)at the employer's expense when the employer has a reason to suspect that is in order. We also have a union. Unless the contract specifically prohibits, which I doubt would be the case, the union has no voice in the employer's decision on this one. Our contract does require, however, that a person out on a medical disability retain seniority rights for 12 months, which could require that we not terminate prior to then. I had two who were terminated in the past 12 months, in very similar circumstances to yours, who did not follow the requirements of continuing to seek and participate in a medical treatment plan and provide 30-day followup physician reports to us. They exhausted FMLA, did not return and did not continue to follow our policy.

WT

There are times when it does not pay to pinch pennies and this is one of them. If you put the employee on paid leave and do not subtract such leave from accrued vacation, sick leave or other paid time, then the employee has not lost anything. Disputes and problems generally arise when the employee has to suffer some kind of loss. Get your second opinion and see where you are but resist the temptation to try to do this at the employees expense.