Fitness for Duty examinations can be an important part of an employer’s hiring and
retention protocol. The Nebraska Supreme Court recently clarified when an employer may require applicants and employees to undergo fitness for duty examinations. In Arens v. Nebco, Inc., the court ruled that an employer must have a legitimate, nondiscriminatory reason for its demand that a current employee submit to a fitness for duty examination.
In this case, Lenard Arens suffered two significant injuries over the course of his 25 years of employment with Nebco. The second injury, a closed head injury, limited the type of work he could do and required written instructions due to short term memory loss. Arens was assigned to drive tractor-trailer trucks. Several years after returning to work, Arens had two minor accidents with his truck within a matter of days. Arens supervisor required him to undergo fitness for duty examination. Arens failed the fitness for duty examination and was terminated. Arens filed suit, claiming that Nebco discriminated against him by making him take a fitness for duty test.
The case went to trial and the jury returned a verdict in favor of Nebco. Arens appealed and the Supreme Court reversed, finding that the trial court applied the wrong standard as to when an employer could require a fitness for duty examination.
The Supreme Court clarified the two standards applicable to fitness of duty examinations under the Nebraska Fair Employment Practices Act; (1) for new employees, and (2) for current employees.
New Employee Fitness for Duty Examinations
An employer may require job applicants who have been conditionally offered a job to undergo post-offer medical examinations to determine their ability to perform the job if the employer:
- Subjects all newly hired employees to the same exam;
- Keeps the exam information confidential and in a separate medical file, and
- Doesn’t use the exam results to discriminate on the basis of a disability.
Current Employee Fitness for Duty Examinations
An employer may require a current employee to undergo a fitness for duty examination only when it is shown to be job related and consistent with business necessity. To establish business necessity, an employer must show:
- The reason for the examination is vital to the business;
- The employer has a legitimate, nondiscriminatory reason to doubt the employee’s ability to perform the essential functions of the job; and
- The examination is no broader than necessary.
Take Away: Employers may still require fitness for duty examinations, but employers must be able to show that an exam for a current employee is based on solid, nondiscriminatory evidence.