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Ninth Circuit Approves of Preemptive Fitness For Duty Exams, In Some Circumstances

September 2010
Employment Law Notes
Under the Americans with Disabilities Act (the “ADA”), it is illegal to require an employee to undergo a medical examination to determine whether the employee is disabled, unless the examination is both job-related and consistent with business necessity. The Ninth Circuit Court of Appeals has repeatedly emphasized that the business necessity standard is “quite high” and should not be confused with “mere expediency.” As a result, whether and when an employer can send an employee for a fitness for duty exam (“FFDE”) can be a difficult question. This question is even more complicated when an employer is concerned about an employee’s ability to perform his/her job, but has not yet gathered objective evidence of declining performance, such as negative performance reviews.