During employment, you can’t:1

• Require any medical or psychological examination of an employee.
• Make any medical or psychological inquiry of an employee.
• Make any inquiry as to whether an employee has a mental disability, physical disability or medical condition.
• Make any inquiry about the nature or severity of a physical disability, mental disability or medical condition.

However, you can require any examinations or inquiries that are job-related and consistent with business necessity. The EEOC explains that a disability-related inquiry or medical examination may be “job-related and consistent with business necessity” when:

• You have a reasonable belief, based on objective evidence, that a medical condition will impair an employee’s ability to perform essential job functions.
• You have a reasonable belief, based on objective evidence, that an employee will pose a direct threat to coworkers’ safety due to a medical condition.
• The examination or inquiry is part of a request for reasonable accommodation when the disability or need for accommodation isn’t known or obvious.
• The examination or inquiry is performed in connection with periodic medical examinations and other monitoring under specific circumstances.
• You know about a particular employee’s medical condition, have observed performance problems and can reasonably attribute the problems to the medical condition.
• A credible third party gave you reliable information that an employee suffers from a medical condition.
• Based on objective evidence, you observe symptoms that indicate that an employee may suffer from a medical condition that impairs that individual’s ability to perform essential job functions or poses a direct threat to the safety of others.

California’s disability regulations define “job-related” as “tailored to assess the employee’s ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or others due to disability.”2 The regulations further define “business necessity” as “vital” to the business.3

• Whether a fitness for duty exam will be appropriate must be examined in each and every circumstance to determine if it’s truly job related and consistent with business necessity, given the particular employee’s actual job duties.

Example of Appropriate Fitness-for-Duty Exam

Fitness-for-duty exams are lawful in certain situations, but employers should use caution.

In one case, a university professor was terminated for refusing to participate in a fitness-for-duty exam after multiple people reported multiple instances of threatening behavior. The employer’s decision to require the exam was based on the unrefuted advice of experts in the field of workplace threat assessment.

The professor sued his employer on various grounds, including violation of the FEHA, which prohibits disability discrimination.4

The court noted there was “ample evidence” that the exam was necessary to determine whether the employee posed a workplace danger and that it was vital to the business. Moreover, under California law, the university had an unquestionable duty to maintain a place where people can safely work.

A California court of appeal affirmed that the employer had the right to seek a fitness-for-duty exam because, under the facts of this case, the exam was job-related and consistent with business necessity.

Examples of Improper Medical Inquiries

Asking an employee for an underlying general diagnosis, either to justify the employee’s entitlement to leave/accommodation or to allow an employee to return from a disability leave, may be an impermissible inquiry.

Instead, permissible inquiries focus on whether the employee can perform the essential job functions.

Example: In one case, an employer demanded that employees provide a medical certification including a brief general diagnosis with enough information “to allow the company to make a determination concerning the employee’s entitlement to leave, or to evaluate the need to have an employee examined by [employee health services] prior to returning to duty.”

The employees claimed this requirement violated the ADA because the law prohibits an employer from making inquiries about a disability or about the nature and severity of a disability unless it’s job-related and a business necessity.5

The employer argued that its requirement didn’t constitute an unlawful inquiry because it required only a general diagnosis. The court rejected the employer’s argument, finding that even what the employer referred to as a “general diagnosis” might reveal a disability.6

Example: A federal district court found that an employer’s policy requiring a doctor’s note to excuse all employees’ health-related absences violated the ADA because employees were required to submit a note stating “the nature of the absence (such as migraine, high blood pressure, etc.).” The court found that the policy invited intrusive questioning into the employee’s medical condition and tended to elicit information regarding an actual or perceived disability in violation of the ADA.

There was no evidence that the requirement was job-related and consistent with business necessity. According to the court, if the medical provider verifies in writing that the employee has a medical condition that requires a work absence and specifies when the employee may return, there’s no need for the employer to know the underlying medical condition.7

Example: An employee suffered an on-the-job back injury and filed a workers’ compensation claim requiring a medical evaluation. However, the evaluation far exceeded evaluating whether the current back injury prevented the employee from safely doing his job duties. Instead, the evaluation made unlawful inquiries into the employee’s prior medical issues, including cancer-related diagnoses and treatments, and required the employee to undergo a medical examination based solely on speculation related to those records.

The employee was terminated based on the medical examiner’s findings that, while healed from his current injury, the employee’s prior medical history could keep him from safely performing his job. The employee sued for violation of the ADA by unlawfully inquiring into his prior medical issues and then terminating him based on those results. The employee won $400,000 in damages.8

For more information, see Documentation of Disability.

1. Govt. Code sec. 12940(f)