This article series examines similarities and differences between the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) so that you can stay in compliance when both laws apply. Here, we compare what types of postoffer inquiries and examinations are permitted under each law.

ADA

After a conditional offer of employment has been made, an employer may ask whether applicants will need reasonable accommodations related to anything connected with the job (i.e., job performance or access to benefits/privileges of the job), as long as all entering employees in the same job category are asked this question.

An employer may ask an employee for reasonable documentation to establish that he or she has an ADA-protected disability and that the disability necessitates a reasonable accommodation.

A preemployment physical may be required after a conditional offer is made, as long as all entering employees in the same job category are subject to examination regardless of disability. For current employees, a medical examination or inquiries regarding disability may be required only if the exam or inquiry is job related and consistent with business necessity (e.g., employees who want to return to work after an injury may be required to have a medical exam to show they can still perform the job functions).

Practice tip: If you believe that an employee’s performance is suffering because of an undisclosed disability, approach the employee and address the performance problem—not the disability. Directly addressing an undisclosed disability may lead to a claim of “regarding” an employee as disabled.

FMLA

There are no specific statutory or regulatory requirements for postoffer inquiries and examinations under the FMLA.

However, an employer may deny reinstatement until or unless a returning employee provides a fitness-for-duty medical certification (stating ability to return to work), if the employer requested this certification when it issued the designation notice and if the leave was taken for the employee’s own serious health condition.

An employer may request a simple statement that the employee is released to work or it may require that the fitness-for-duty certification specifically addresses the employee’s ability to perform the essential functions of the job.

A fitness-for-duty certification may also be required when there are “reasonable safety concerns” based on the employee’s serious health condition. Reasonable safety concerns must be based on a reasonable belief of significant risk of harm to the employee or others.

FMLA and ADA compared

The ADA permits employers to make inquiries or require medical examinations (fitness-for-duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. Similarly, as noted above, the FMLA regulations state that a fitness-for-duty certification can be a simple statement of an employee’s ability to return to work or an assessment of the employee’s ability to perform the essential functions of the job.

The courts have addressed this issue and held that the FMLA implies that an employee may be required to meet the fitness requirements of the FMLA and the ADA.

Next week: Alphabet soup: How GINA interacts with ADA and FMLA