NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
This is the second article devoted to fitness-for-duty examinations and Functional Capacity Exams (FCE) in workers’ compensation. The first segment focused on how such examinations can lead to significant cost savings for employers and common mistakes that are made by employers. This segment will focus on when to order a fitness exam or FCE and how to avoid conflict with the FMLA and ADA.
A fitness-for-duty examination must be job-related and consistent with business necessity according to the relevant EEOC Guidance. When an FCE is ordered by a physician as part of a workers’ compensation case, it is generally related to medical care or to determining return-to-work status. When a physician requests an FCE, more often than not, it is because the physician is not sure that the injured worker can perform light duty or full duty work. Under those circumstances, the FCE is job related.
Many employers also request FCEs or fitness-for-duty examinations on their own when an employee has been out of work for a lengthy period of time, usually following surgery. This is particularly true where the employee has a physical job, like maintenance, custodian, construction or the like. An employer’s request would meet the job-related standard if the employee has certain restrictions imposed by the treating physician, or if the employee has requested accommodations at work. Employers should be aware, however, of one limitation on such exams: namely those that occur during the 12-week FMLA period. All workers’ compensation lost time cases are generally FMLA events, and most employers designate the absence from work as FMLA leave. They run FMLA time concurrent with workers’ compensation absences. The FMLA does not permit second opinions on return to work. So if the treating doctor issues a return-to-work note, stating that the employee can perform the functions of his or her job, there is no right to a fitness exam within the 12-week FMLA period.
After 12 weeks when FMLA has expired, an employer has more leeway in requesting an FCE or fitness examination. The employer must still show that there is a job-related need for the FCE or fitness examination. That could be satisfied by observations that the employee is having problems walking or getting around. Alternatively, the employee may speak to supervisory staff indicating that he or she is not sure about being able to perform the essential job functions. The employee may ask for assistance in doing certain essential functions should he return to work or request that certain functions be eliminated. All of these reasons justify a fitness-for-duty examination or an FCE.
It is very important to make sure that the physician who is performing a fitness-for-duty examination is familiar with the essential job functions. The same is true of physical therapists who are performing FCEs. Functional job descriptions are of great value to doctors and physical therapists. The examination should be tailored to the injury that the employee has and should not be focused on long-standing medical conditions that have nothing to do with the work injury. The physician should address the ability of the employee to perform essential job functions as well as the direct threat standard.
Sometimes employees do not recover adequately from work injuries to be able to return to work and perform their job functions safely. Before making such a determination, the employer should carefully review the FCE or fitness assessment and then meet with the employee to engage in an interactive dialogue with the employee. Because the ADAAA so widely expands ADA disability coverage, it is better to assume that the injured employee following surgery or significant injuries is potentially covered under the ADA. In that meeting, the employer will be able to hear first-hand whether the employee is requesting reasonable accommodations that would allow the employee to perform the essential functions of the job. It is the employee’s responsibility to make the request for the accommodation, not the employer’s job to guess what they might be. However, it is the employer’s obligation to decide which accommodation would work best and whether the accommodation poses an undue hardship.
Sometimes treating doctors give short shrift to the return-to-work process and issue full clearance notes without the benefit of an FCE. The result is that many employees in New Jersey who have had some serious injuries with lasting complaints of pain and limitations may struggle with work duties. When an employer has job-related reasons to require a fitness examination of an existing employee, the employer should utilize the FCE or fitness-for-duty process. If an employee in a factory setting with very physical job duties comes into work limping and in pain, the wrong thing to do for the supervisor is to walk past the employee and bid him or her a good day. That is exactly the circumstance that may justify a fitness-for-duty examination.
Employers should also take note that when a workers’ compensation case is settled in the Division, the employee has to provide his or her complaints on the record to support the award of disability. The only time this does not happen is when the settlement is under N.J.S.A. 34:15-20. All orders approving settlement with percentages of disability are premised on proof by the employee of either a substantial limitation in working ability or a substantial impact on non-work activities — or both. Seldom are employers in court to hear these complaints but the defense lawyer should provide details in the closing letter to the client so that the employer is aware that an employee may be complaining of physical problems in doing the essential job functions. If that is the case, the employer has a right to obtain a fitness-for-duty examination. An employer can also ask for a copy of the transcript of the testimony before the Judge, as this is sworn testimony.
In this practitioner’s opinion, the reason there are so many re-injuries in New Jersey is that there is not enough attention to the issue of fitness for duty. Unlike other states where employees settle their cases and agree as a condition of settlement not to return to work, almost every employee in New Jersey returns to the former job because New Jersey is a functional loss state in contrast to Pennsylvania, which is a wage loss state. Re-injuries are expensive and often lead to much higher awards and sometimes total disability awards costing the employer millions of dollars. The cost of an FCE or a fitness examination, by contrast, is very modest but that well-timed examination may save the employer tens or even hundreds of thousands of dollars down the line.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.