What would you do if your hospital, employer, or medical board mandates a FFDE (Fitness For Duty Exam)? Kernan Manion, M.D., (Center For Physician Rights) shares his wisdom.
Understanding FFDEs and Protecting Your Rights
Top 10 Takeaways:
1. FFDEs should be limited in scope, focusing on specific job-related concerns
backed by objective evidence of deficient performance or safety issues.
2. Under ADA, FFDEs must be related to your job performance and consistent
with business necessity.
3. Employers and medical boards must engage in an interactive process
with the physician to explore potential mitigations and reasonable
accommodations before reflexively resorting to a mandatory FFDE.
4. The “potential for impairment” due to a disability is not the same as actual
impairment and should not be the sole basis for ordering an FFDE.
5. Physicians have the right to know the reason for the FFDE, discuss the limited
scope and desired outcome, and clarify confidentiality parameters.
6. The FFDE evaluator should be an impartial entity qualified to conduct an FFDE
and knowledgeable about ADA and the physician’s specific job functions.
7. Physicians have the right to contest the FFDE, obtain an independent opinion,
and receive a copy of the FFDE report.
8. If the FFDE reveals a disability as a contributor to the alleged impairment, the
employer or medical board must engage in the interactive process to
determine possible mitigations and reasonable accommodations, unless it
causes the employer undue hardship.
9. Physicians subjected to discriminatory or unfair practices during the FFDE
process may have legal recourse under ADA.
10. Seeking guidance from an attorney knowledgeable in ADA law as well as
employment law or professional license defense, and having a good
understanding of one’s rights are crucial when facing an FFDE or dealing with
potential disability discrimination in the workplace.
The importance of understanding the legal and ethical aspects of FFDEs, being
proactive in asserting your rights under ADA and other laws, and seeking
appropriate support and guidance throughout the process cannot be overstated. By
keeping these key points in mind, you can better navigate the challenges of an FFDE
and ensure that your rights are protected.
11 action items and key questions to ask amid a mandatory FFDE
1. Ask the referring entity (medical board or hospital) to clearly state the specific
concerns they have about your performance and how it may be related to a
suspected disability.
2. Request information about intended scope of FFDE and ensure it is
limited to assessing job-related concerns only.
3. Inquire about qualifications of the FFDE evaluator and their knowledge of the
ADA and your specific job functions as well as their impartiality. Ask whether you
can obtain an independent evaluation and, if not, why not.
4. Ask whether you will receive a copy of the FFDE report and if you will have the
opportunity to review and respond to its findings.
5. Discuss confidentiality parameters and who will have access to FFDE results.
6. Request information about the desired outcome of the FFDE and any potential
consequences for your employment or medical license.
7. Ask if a discussion about possible mitigation and reasonable accommodations
will be considered before requiring your FFDE, and how they plan to
engage in the interactive process to explore such accommodations.
8. Document a recap of all discussions and interactions you have with any
of these parties, dating each new journal entry.
9. Gather all documentation (and if relevant, medical records) that may
support your ability to perform your job functions safely and effectively.
10. Seek peer recommendations of attorneys knowledgeable in ADA law to
understand your rights amid a mandated FFDE and develop a strategy
for protecting those rights throughout the FFDE process.
11. If you believe the FFDE is discriminatory or unjustified by objective evidence,
consider filing a complaint with Equal Employment Opportunity Commission
(EEOC) or state fair employment practices agency.
By proactively asking these questions and taking these actions, physicians can better
understand the FFDE process, assert their rights, and protect themselves from
potentially harmful disability discrimination. It’s vital that you approach this challenge
with an awareness of potential dangers and a clear understanding of your legal
rights, and to seek appropriate support and informed guidance to navigate the
complexities of a mandated FFDE.
Need help navigating your FFDE? Contact Dr. Manion or get weekly support.
