Note: When trying to decide if someone is fit for work, it is a good idea to have a job description that gives the criteria to measure against being fit for work.  A sprinkling of things to consider that could be temporarily impaired would be ability to lift, reach, stand or sit for long periods, apply critical  thinking skills, respond to emergency situations, use a keyboard, or operate office or other machinery.

An employee who is fit to work is one who is able to handle the physical, cognitive, and sensory requirements of their written job description OR has commenced the interactive process to work through finding sufficient accommodations for their needs in order to meet their adapted job requirements.

In these situations, privacy is a thorny front-and-center issue. What are your rights and obligations as an employer? While you do not have a right to know the details of an employee’s ailment or physical limitation, you do have a right to know if they are sober and both physically and mentally able to perform their assigned job tasks. Incapability to perform these tasks could create a safety issue for the employee themselves, other workers, and a potential liability for you as the employer.

Here are 4 situations which require outside assurance of an employee’s fitness for duty:

– Returning to work after a long illness, hospitalization, or serious accident. This requires a medical note which specifically states the employee is fit to return to work. It should not detail the illness or injury directly, but rather concentrate on the employee’s ability to perform their specific work. To make sure the medical professional has the necessary information for making such a determination specific to the employee’s job, furnish them with a detailed description of the physical/mental/sensory demands of the job. Ideally these would already be clearly set out in the Job Description for the position.

– Pregnancy. In cases with considerable physical task requirements, exposure to hazardous materials or substances, driving, or staying in the same position on one’s feet for long periods of time, a doctor’s note is required for a return to work. A good job description with physical aspects of the job should be shared with the employee’s doctor(s) to determine their suitability for work. Unlike with illness or accident, we are looking more for accommodations and ruling out activities which cannot or should not be performed by someone pregnant or recently pregnant. If an employer has less hazardous or strenuous work available which the pregnant employee is qualified to do, these duties should be offered instead. Returning to work after delivery requires a doctor’s note of adequate fitness. Upon their return to work, allow extra break time and physical movement;

-When an employee is involved in an accident on the job a determination as to the fitness for work at that point in time should be made.  This entails requiring that a drug and alcohol screening be done at the hospital if the employee is taken to the emergency room. If unable to get the test done at the hospital a test should be required as soon as possible. Doctor’s note for fitness to return to work should also be required. Your workers comp insurer should also be notified and their recommendations followed.

-Impaired job performance when observed should be an occasion for a private conversation with the employee. Conversation should be focused on behavior observed not on suspicion of substance use. Employee should be asked if there are factors affecting their work.

Judgment is called for here, while anyone can have an off-day consideration needs to be given to how critical  of a need there is for an employee to be “at the top of their game”. While a listless receptionist might be cause for aggravation, a listless air traffic controller can cause great damage.

Listen to what the employee has to say. If there is a denial that anything is wrong employee should perhaps be observed for a longer period to see if things work themselves out. if they do not and behavior continues, send the employee home for the day. First such occurrence I would suggest paying them for the day.

If there are temporary physical or emotional factors affecting the employee then you should work together to make a plan for some time off for reduced hours.  Creativity can be of use here.

If an issue of alcohol or drug dependency is revealed  you should be prepared to offer the employee some help. If you have EAP (employee assistance plan) in  place than give the employee information on contacting the plan. If you do not have an EAP hopefully you have some resources on hand to refer people to for assistance.

If there is a reasonable suspicion of drug or alcohol use on the job a drug test may be warranted if employee does not admit to it and take responsibility for correcting the problem immediately.

Reasonable suspicion means that you or a manger have a valid reason, based on logic and facts, to believe that an employee is taking drugs or drinking alcohol on the job or is under the influence of such substances. Examples of reasonable suspicion include but are not limited to:

•  Direct observation of drug or alcohol use
•  Physical symptoms of substance abuse (odors from substances, slurred   speech,uncoordinated movement, etc.)
•  A report from a reliable source that an employee is using drugs
• Erratic behavior while at work or significant deterioration in work performance
• Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work.

If you need any additional help with these or other HR Issues, please contact us!