Sometimes employees make statements on FMLA forms that cast doubt on their ability to do their job. Can you pursue these clues, or would you be violating the law?

In a case involving a Nebraska employer, the federal courts recently said you can use such information to weed out employees unable to carry out their assigned functions.

Depression, anxiety
An emergency dispatcher used up her sick leave, and the city suggested she apply for intermittent FMLA leave to cover future absences. Her application spoke of depression and anxiety that left her unable to perform her essential job functions. A supporting doctor’s note said anxiety interfered “with her sleep, energy level, motivation, (and) concentration.”

This made her managers wonder if she could do the job, whose description said holders must “function accurately while working under considerable pressure” and “think and act quickly and calmly in (an) emergency.”

The managers had her undergo a fitness-for-duty medical exam, which she failed. She was fired, and she sued for violations of the ADA and FMLA.

But the courts rebuffed her. An appeals court said an employer can require an employee applying for or returning from FMLA leave to undergo examination “if she suffers from a continuing disability that the employer has reason to believe might affect her job performance.”

Takeaway: If an employee’s FMLA application indicates a possible inability to do the job, you may want to require a fitness-for-duty exam.

Cite: Wisbey v. City of Lincoln, No. 09-2100, 8th Cir., 7/6/10.

Leave a Reply

Your email address will not be published. Required fields are marked *