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And Another Thing...

Creating and following a Fitness for Duty program at your company can help you identify workers who should not be behind the wheel, turning a wrench, assisting a patient or simply working at a computer. In doing so, you can protect your employees from in-jury – and your company from your next claim. The “wrong worker,” is anyone who is physically unable or unfit to perform essential job functions.

This is an important topic for risk managers and human resources specialist to consider now, as many employers are experiencing the aging workforce phenomenon that has appeared across many industries. The Bureau of Labor Statics reports that the 65 and older workforce is growing each year. Experts attribute this to the stressed economy where people are not retiring or are retiring and seeking part time work to supplement their income. This is an important detail, but be mindful not to create a Fitness for Duty Program that just address older workers as this could lead to claims for age discrimination. As you know, everyone can get hurt, or cause an accident and a compliant Fitness for Duty program should be applied across the board for all employees – drivers, aides, and mechanics and office workers.

In creating a Fitness for duty Program, one should review of important employment laws to keep in mind when creating and using a Fitness for Duty program such as The Civil Rights Act, Americans with Disability Act, Age Discrimination in Employment Act; Family Medical Leave Act; and State Workers Compensation Act.  Also you should consider and review regulations specific to your industry that need to be addressed for the positions in your company, for example if you employ CDL drivers the medical exams, mandated Drug and Alcohol Testing; and the Hours of Service restrictions would need to be a part of your Fitness for Duty Policy and Procedures. Employers may feel sometimes regulations in their industry are numerous, in the case of Fitness for Duty, employers can use the regulations to their advantage to insure safe workforce and defend against a claim of discrimination.

To create a compliant Fitness for Duty Program one should include the following: Employee Policies and Office Procedures that communicate the company’s Drug and Alcohol Policy, Workers’ Comp Policy, Leave of Absence and Return to Work Policy and Fitness for Duty Policy. Employers should also have a detailed Job Description that includes the physical demands of the job. Employers should have a job description for every position. The job descriptions should identify the essential and non-essential job duties in addition to the working environment and physical demands of each individual position.  

The other important element of a good Fitness for Duty Program is education and training.  Once created and approved, be sure to review policies and expectations with employees, and have them sign an acknowledgement form to insure they are committed to safe workplace under the Fitness for Duty Program. This ensures that if and when an issue comes up the employees is not surprised that they need to go for a drug test, clearance physical or have a post- accident/event job duties screening.

Completing this preparation in advance of a real event will insure you have the tools and information in place when needed. If you need assistance in creating your Fitness for Duty Program you may find it helpful to speak with your existing experts in the field of Risk Management such as you workers compensation carrier, third party drug and alcohol tester, HR department, and/or seek out legal counsel to insure you are creating a compliant solution using a Fitness for Duty Program and good risk management techniques.

R C Kelly Law Associates has help create compliant Fitness for Duty Programs and assist employers with specific employee events surrounding fitness for duty issue which often is coupled with other employment law risks.  For more information call 215-896-3846 or email



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