Is it Allowable to Subject Pregnant Employees to Fitness-for-duty Evaluations if There is a Question as to Whether They can Continue to do Their Job?
Answered by Tee L. Guidotti, MD, MPH, DABT, FACOEM, Occupational + Environmental Health & Medicine, Washington, DC. Dr. Guidotti is a Past President of ACOEM.
The short answer is yes, but an employer should be very, very careful not to cross over the line into discrimination or harassment by initiating a fitness-for-duty evaluation with a hidden agenda.
Protecting new and expectant mothers involves three dimensions of occupational health: 1) fitness for duty (FFD), by which is meant the capacity of the mother to do the job and any accommodation (workplace or work modification) that is required to enable her to do the work safely and comfortably, 2) occupational health protection, by which is meant prevention of exposures that lead to health effects for the mother, fetus, or child, and which should be present already in a well-run workplace, and 3) compliance with measures that indirectly support health, such as family and medical leave, fair treatment, and new regulations under the Affordable Care Act requiring a private place for lactating women to express breast milk while at work.
Pregnancy is not an illness, but it is a temporary disability, both in law1 and in the current understanding of what disability means.2 The new conceptualization of disability is that it is a mismatch between the capacity of the individual persons (not a class!) and the environment in which they seek to function and fulfill their social role, not an arbitrary category or deviation from normal capacity. Thus, FFD evaluations are reasonable and appropriate if there is a clear reason. If there is no clear reason, there is no justification for a FFD evaluation and the employee should be left alone.
FFD during pregnancy is based on the same principles as FFD in other circumstances. Is the mother able to perform all the necessary functions of the job? If there is a question, a proper FFD evaluation should be performed. As in all FFD determinations, there are three outcomes:
If “fit,” then she is fit for duty and no modification is required.
If “fit with accommodation,” then the manager must determine what functions cannot be done and what modifications are required in the workplace, work scheduling, and work organization to allow her to continue to do the job to the extent that she can. This should be handled the same as it would be for any employee with a medical condition, with two differences. For the expectant mother, this may mean progressively evaluating her ability to do the work and making modifications as the progression of pregnancy requires. Most of the time, however, this is not necessary because little or no accommodation is required, even late in pregnancy, and when the need for accommodation does arise, the need is almost always obvious.
If “unfit,” even with accommodation, the manager must determine this and arrange for a leave based solely on the FFD determination, not because the employer determines that the employee should not be exposed to a hazard.
Because pregnancy is a physiological function and not an injury or illness, there would normally be no reason to conduct an evaluation for fitness to return to work (RTW) after delivery.