A new case from the West Virginia Supreme Court of Appeals provides some guidance to employers on fitness for duty exams. This is the money quote: “An employer’s quest for reassurance that its employee is fit for duty where, as here, the evidence reveals a legitimate concern about the employee’s performance ability is not proof that the employee was regarded as impaired.” (Link: http://www.courtswv.gov/supreme-court/memo-decisions/fall2018/17-0535memo.pdf).
Plaintiffs often argue that an employer’s request to undergo a fitness for duty exam is indicative of discriminatory motive. The theory is that the employer regards the employee as disabled, triggering protection under the Americans with Disabilities Act or the West Virginia Human Rights Act. Most courts addressing this issue have recognized that a fitness for duty request, standing alone, does not support a “regarded as” theory of disability discrimination. Until now, the issue had not been squarely addressed by the West Virginia Supreme Court of Appeals. This is a significant win for West Virginia employers and should allow HR managers significantly more flexibility in managing health-related performance concerns.