Employment Law Daily Being ordered to take a functional capacity exam was not adverse job action for officer with back injury
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Wednesday, April 3, 2019

Being ordered to take a functional capacity exam was not adverse job action for officer with back injury

By Nicole D. Prysby, J.D.

The court rejected the argument that a directive to undergo a fitness-for-duty exam was in itself an adverse employment action. The officer asserted that it was the exam that exacerbated his back injury and rendered him unable to perform the essential functions.

A police officer’s ADA discrimination and retaliation claims failed on summary judgment because the only basis for his claims was that his employer required him to undergo a fitness-for-duty exam after he had been out of work multiple times due to a back injury. He took and passed the exam but argued that the exam exacerbated his back injury to the point where he was unable to perform the essential functions of the job. However, a federal court in Michigan held that the requirement to undergo a medical exam was not sufficient, standing alone, to state a claim for discrimination or retaliation because it was not an adverse employment action (Gipson v. Ferguson, March 29, 2019, Ludington, T.).

Background. The police officer was injured in a car accident and was out of work for almost seven months due to back problems. When he returned to duty, he was subject to some limitations imposed by his doctor, such as no swing shifts and a 25-pound lifting restriction. His back problems resurfaced about a year after returning to work. After several more months out of work, he returned to a light-duty position.

He began talking with the police chief about a return to full duty, and the chief required him to undergo a functional capacity evaluation (FCE). The officer passed the FCE and returned to work without restrictions, but complained that the heavy weight-lifting tests in the FCE were unnecessary for his job and exacerbated his back problems. Shortly after returning to work, he again had to take time off because of back problems. He sued for ADA discrimination and retaliation. The court granted summary judgment in the employer’s favor on both claims.

Can’t perform essential functions. The officer could not establish a prima facie case of ADA discrimination because he could not demonstrate that he was an otherwise qualified individual. In a deposition, he admitted that he could not physically perform the essential function of police work and that there were no accommodations that would have allowed him to do so. He argued to the court that he could have performed the essential functions but for the FCE, which exacerbated his back condition. But the court held that the fact that he was, at one point, capable of performing the essential functions of his job was not relevant.

No adverse job action. He also presented no evidence that he was subject to an adverse employment action. He appeared to argue that being ordered to take the FCE was, in itself, an adverse employment action independent of any other action taken by the employer. The court rejected that argument, noting that if he had refused the FCE and been fired, or failed the FCE and been demoted, those actions would likely be adverse employment actions. But instead, he completed and passed the FCE and then stopped working a week later of his own accord.

Nor was the chief’s ordering the FCE, standing alone, an adverse employment action for purposes of a retaliation claim. There was nothing inherently retaliatory about ordering an FCE for a police officer believed to be at medical risk when performing his job duties, or incapable of performing those duties.

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