October 12, 2012
U S I N G E X A M I N AT I O N S T O
D E T E R M I N E W H E T H E R E M P L O YE E S
C A N P E R F O R M W O R K S A F E LY
Larry Peterson
Krista Hiner
Peterson, Logren & Kilbury, P.A.
Requiring Employees to Attend Workability
Examinations
 Acceptable in only four situations, generally:
 1: Pre-Employment Exams;
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2: You have the Employee’s consent;
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Authority: Minnesota Human Rights Act;
Authority: Minnesota Human Rights Act;
3:FMLA Fitness for duty exam; or,
4: Workers’ compensation claim – right to conduct an IME
(MSA 176.155 subd.1);
Minnesota Human Rights Act
 “Except for when based on a bona fide occupational
qualification, it is unfair to…require or request a
person to undergo a physical examination.” (MSA
363A.08 Subd.4)
Exams Allowed by MN Human Rights Act
 “It is not unfair to require a physical exam for the
purpose of determining the person's capability to
perform available employment provided: conditional job
offer has been made….[and the] exam tests only essential
job-related abilities.” MSA 363A.20 (subd.8(1)).
 “With the consent of the employee, after employment
has commenced to obtain additional medical
information for purposes of assessing continuing ability
to perform the job…for purposes of assessing the need to
reasonably accommodate an employee…” (MSA 363A.20
(subd.8(2)).
Fitness for Duty/Workability Exams
 Employer has a right to require the employee to
produce a medical doctor’s opinion that the
employee is able to perform all the physical tasks
required before returning from FMLA leave.
 If you enforced this requirement, then you do not
have to return the EE to work before opinion
produced.
Fitness for Duty Exams Under FMLA
 Highly regulated:
 Notify of FFD requirement on designation notice.
 Attach copy of all physical activities (essential job duties
must be listed) to designation notice.
 You can require FFD certifications only when the employer
has a uniformly-applied policy that requires the same of
similarly situated employees.
 You can require them only when they took leave for own
condition.
 FFD certification only for the condition that necessitated
the leave.
FMLA Medical & FFD Certifications
 Employee requests FMLA
 Er can require medical certification to go on FMLA
 Has right to 2nd opinion
 If 2nd opinion conflicts with the 1st, can get a 3rd opinion
which controls.
 If you grant FMLA, then you must preserve your
right to a Fitness-for-Duty Certification in the
designation notice or you lose that right.
Preserve your right to Fitness for Duty Certification
What to attach to designation notice
 Attach a list of essential job functions
 What are the essential job functions? Under the
Minnesota Human Rights Act (MHRA), evidence to
consider in determining the essential functions of the job
may include:
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(1) the employer's judgment as to which functions are essential;
(2) written job descriptions prepared before advertising or
interviewing applicants for the job;
(3) the amount of time spent on the job performing the function;
(4) the consequences of not requiring the incumbent to perform the
function; and
(5) the current work experience of incumbents in similar jobs.
Kammueller v. Loomis, Fargo & Co., C.A.8 (Minn.)2004, 383 F.3d
779.
When does FFD certification occur?
 Needs to be submitted before reinstatement.
 Can delay reinstatement.
 If the employee does not provide fitness-for-duty
certification, then they are no longer entitled to
reinstatement under the FMLA. (29 CFR
825.312(e), 825.313(d).)
 The employee has until the time the FMLA leave
is concluded. (29 CFR 825.313(d).)
What if the FFD Certification is Unclear?
 Contact the health care provider.
 You are bound to the same rules of communication
with the health care provider as you would be
under the initial certification.
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Must advise the employee and allow seven days.
If no response, then you can write provider directly
Under no circumstances:
Delay the employee’s reinstatement pending this clarification
 May the employee’s direct supervisor contact the physician
 Ask for additional information outside what FMLA allows

Second Opinions
 Can I get a 2nd opinion instead of
clarification?
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No! Cannot seek a 2nd or 3rd opinion of a fitness for duty!
(Unlike the initial leave certification.)
They are expressly prohibited under the FMLA. 29 CFR
825.312(b).
Exams after Reinstatement
 Once the employee is reinstated, you cannot have
them attend a medical examination for the purposes
of evaluating ability to perform job duties unless:
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1: You have the consent of the employee; or,
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(Minnesota Human Rights Act, MSA 363A.20 subd.8(2).)
2: It is an IME performed under Chapter 176.
What if Employee Can’t Return to Same
Job?
 If the FFD certification indicates that they can’t
return to substantially the same job, but you can
infer from the certification that the Employee just
requires a reasonable accommodation to perform the
task, then you now have a responsibility to evaluate
whether you can make that accommodation.

You have 20 days.
What Constitutes Reasonable Accommodation?
 "Reasonable accommodation" means steps required
to accommodate the known physical/mental
limitations of a qualified disabled person.
"Reasonable accommodation" may include but is
not limited to: (1) making facilities readily accessible
to and usable by disabled persons; and (2) job
restructuring, modified work schedules,
reassignment to a vacant position, acquisition or
modification of equipment or devices, and the
provision of aides on a temporary or periodic basis.
Employees on non-FMLA medical leave
 Granting non-FMLA leave contingent on employee
consenting to a fitness for duty exam when they
return;
 Must grant this leave to similarly situated employees.
Scenario #1
 59 year old female has such severe asthma and
hypertension that she is experiencing shortness of
breath. Gives supervisor a doctor’s slip that she cannot
walk up and down steps at work more than 1x/hour,
must take blood pressure hourly, and is cannot work
overtime due to related fatigue. Permanency of
restrictions unknown until a regiment of medications are
attempted.
 She works in a four resident group home for the severely
physically disabled alongside at least one coworker. She
usually works eight hour shifts, but every other weekend
works the sleepover shift from 9:00 p.m. Friday evening
to 7:00 a.m. Monday morning. During those days she has
help for eight hours each on Saturday and Sunday.
Scenario #1 (cont’d)
 If she refuses to be placed on an unpaid 12 week FMLA leave
to see if her medical condition improves, can you force her to
go onto a FMLA leave?
 Can you use the ADA rules regarding accommodation and the
performance of essential job tasks in answering No. # 1 above
i.e. is there a qualifying disability; can some of the essential
job tasks be reassigned to someone else; will accommodation
require you to hire more help or spend money to make
modifications in the job tasks?
 Given her age, likelihood that her medical condition will
continue to decline and her years of service should a
severance package along with a resignation be pursued?
Scenario #2
 The employee has been repeatedly “roughed up” by
the residents of your group home. She has had some
time loss due to these injuries which have been paid
by AmTrust. She does not have a pending and open
workers’ compensation claim. She has been talking
more and more about changing jobs and being
“burned out”. You receive a memo from her
counselor that states she cannot work with your
clients more than four hours per day and then only if
there is at least one other coworker present
Scenario #2 (cont’d)
 Does she qualify for a FMLA leave which would give her
some time off to rest, find other work or rejuvenate her
“spirit”?
 Should she be placed on Temporary Partial Disability
Benefits by AmTrust and continue to have her work four
hours per day?
 Should you suggest to her that she needs to see a
specialist, you will not accept the counselor’s opinions
and you will not change her work schedule?
 Should you do your fitness for duty exam with a qualified
and experienced health care provider who is familiar
with your business?
Scenario #3
 The employee was injured at work and has had light duty
restrictions for many months. You are trying to give her light-duty
work. AmTrust is paying wage loss benefits when you cannot
provide light-duty 40 hours/week.
 The medical treatment seems to be going nowhere. The employee
continues to ask doctors for more diagnostic testing. She is
disruptive at work when asked to do anything that comes close to
exceeding her restrictions. Her workers’ compensation QRC is
suggesting a career change and possible retraining. Her workers’
compensation attorney is not interested in pursuing a settlement
until the treating doctor says there is no more treatment available
and the employee is at MMI. AmTrust is in the process of deciding
on doing an IME, but you are not sure you want an IME that says
the employee can come back to work because you do not want her
back to work.
Scenario #3 (cont’d)
 Put her out on a full FMLA leave and let AmTrust “pay the bill”?
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You will argue that you do not have permanent light duty work
available and it appears her restrictions are permanent.
How can you get a fitness for duty without putting her on an FMLA
leave and not using up AmTrust’s IME choice?
Should you insist that the QRC push for a Functional Capacity
Evaluation with a clinic of your choice and then make your
employment decisions based upon that outcome?
If she is a worthy and hardworking employee do you want to retrain
her yourself into another job at your company?
Can you just “let her” go without doing the ADA accommodation
analysis. She will get Unemployment Compensation benefits if
AmTrust does not pay her because their IME says she can be
working and she has no restrictions or objective findings.
When should you be concerned about a refusal to rehire claim
under the treble damages provisions of Minn. Stat. 176.82?
 Download copy of presentation: plklawfirm.com
 Questions/contact
 Larry Peterson: ljp@plklaw.net
 Krista Hiner: khiner@plklaw.net
 Phone: 651-647-0506