Employee and Labor Relations Network
Roundtable
EMPLOYEE RELATIONS
Recognize the sensitivity of medical documentation
Identify when medical documentation may be
requested by management
Know what information should be requested
Understand when medical examination can be
ordered or offered by management
Know how to address employee failure to take
medical examination
Requesting Medical Documentation
Authority to Require/Order Medical Examinations
Authority to Offer Medical Examinations and Establish
Medical Requirements for a Position
Insufficient/Inconclusive Medical Examinations
Employee Failure to Take Medical Examination
Under certain circumstances, management
may request medical documentation
The Employee Relations practitioner
frequently advises management on how to
make requests that comply with legal
requirements
Helpful Definitions
“Medical documentation” – 5 CFR part 339 describes
as “a statement from a licensed physician or other
appropriate practitioner which provides information
the agency considers necessary to enable it to make
an employment decision”
“Qualified Individual with a Disability”- persons with
a physical or mental impairment which substantially
limits one or more major life activities.
Handling Medical Documentation
- Must be kept confidential – to be shared only with
those who have a need to know
- Employers may not give supervisors and managers
u
nlimited access. May give them information
concerning necessary work restrictions and
accommodations.
Handling Medical Documentation, cont.
◦ 5 CFR part 293, Subpart E, Requirements
Physician treatment records generally not appropriate
for non-medical officials
Such records should be distinguished from other
medical reports made available to management
Disclose to agency officials only when needed for
performance of official duties
Maintaining Medical Documentation
◦ Agencies are solely and totally responsible for
processing Privacy Act requests for agency records
◦ Contact agency Privacy Act Officer to discuss
internal rules regarding storage and maintenance of
medical records
◦ The Privacy Act, 5 U.S.C. 552(a)-(b)
◦ 5 CFR part 297
Maintaining Medical Documentation
◦ 5 CFR part 293, Personnel Records
Subpart E provides requirements that can be used for
non-work medical records (required for occupation-
related medical records)
Subpart E, Requirements, states what is needed to
maintain Employee Medical Folder
Maintaining Medical Documentation, cont.
◦ 5 CFR part 293, Subpart E, Requirements
Employee Medical Folder must be established for long-
term and short-term records
Agencies must issue written internal instructions for
Employee Medical File System
Official Personnel Folder and medical records must be
maintained separately
When Medical Documentation Can Be
Requested
◦ To support sick leave or FMLA leave request
◦ The employee raises medical condition in relation
to performance or conduct problem
◦ The employee requests reasonable accommodation
of medical condition
◦ The agency has reasonable belief that employee
poses direct threat due to a medical condition or is
unable to perform the essential job functions due to
a medical condition
◦ In connection with a medical exam when position is
covered by 5 CFR part 339
Types of Medical Documentation – That Can
Not
Be Requested
◦ Genetic Information Nondiscrimination Act of 2008
(GINA) prohibits obtaining genetic information after job
offer
GINA Defined
: Under Title II of GINA, it is illegal to discriminate against employees
or applicants because of genetic information. Title II of GINA prohibits the use of
genetic information in making employment decisions, restricts employers and
other entities covered by Title II from requesting, requiring or purchasing genetic
information, and strictly limits the disclosure of genetic information.
Exceptions that do not violate GINA:
◦ Genetic Information, such as Family History, may be
obtained as part of health or genetic services, i.e. wellness
programs when offered voluntarily by employee
◦ Certification for FMLA Leave for care of family member with
serious health condition
◦ Publically available documents– employer cannot search
with intent
◦ Employers who engage in DNA testing for Law Enforcement
purposes i.e. human remains
When a Leave Request Combines More Than
One Leave Program
Employee must provide documentation to
support request
Medical documentation must be sufficient to
meet the documentation requirements for
each program (e.g., Voluntary Leave Transfer
Program, Family and Medical Leave Act leave)
Information to Include in Request – Some
General Guidelines
◦ Provide straightforward explanation of why
documentation is needed at this time
◦ Identify who will review the medical information
◦ State the key aspects of the job and what the
agency needs to know to make a determination
(consider sending Position Description)
◦ Avoid confusing language
Information to Include in Request, cont.
◦ For positions covered by 5 CFR 339, select the
applicable information listed in 5 CFR 339.104
◦ Diagnosis, including current clinical status
Must be justified according to established diagnostic
criteria
Conclusions and recommendations must not be
inconsistent with generally accepted professional
standards
Physician or, if appropriate, practitioner of same
discipline, must determine diagnosis meets criteria
◦ Information to Include in Request, cont.
– As necessary and relevant, Diagnosis must include
The history of the medical condition includes references to
findings from previous examinations, treatment and
responses to treatment
Clinical findings from most recent medical evaluation,
including any test results or findings of a mental status
examination
Diagnosis, including the current clinical status
◦ Information to Include in Request, cont.
– As necessary and relevant, Diagnosis must include
Prognosis, including plans for future treatment and
estimated date of full or partial recovery
Explanation of impact of the medical condition on overall
health and activities, including basis for restrictions or
accommodations and therapeutic or risk avoiding value
◦ Information to Include in Request, cont.
– As necessary and relevant, Diagnosis must include
Explanation of medical basis for any conclusion regarding
sudden or subtle incapacitation by carrying out, with or
without accommodation, duties of a specific position
Narrative explanation of medical basis for conclusion
regarding whether medical condition is static or well-
stabilized and likelihood of sudden or subtle
incapacitation
Information to Include in Request, cont.
◦ The U.S. Department of Labor provides forms for
obtaining medical documentation for Family and
Medical Leave Act (FMLA) leave, including the
following forms:
WH-380-E-Certification of Health Care Provider for
Employee’s Serious Health Condition
WH-380
-F-Certification of Health Care Provider for
Family Member’s Serious Health Condition
Forms located at: http://www.opm.gov/oca/leave/
Ask for the physician’s contact information in
the event there are questions
A doctor’s pre-printed note that is stamped
by nurse or staff may not be sufficient
medical documentation when there has been
sick leave abuse
Be consistent in applying requirements for
medical documentation
The Board reversed agency’s removal, finding
discrimination, when
◦ Agency allowed male employee to return to work
(light duty) for indefinite time without medical
documentation
◦ Removed female employee when she did not
provide medical documentation
◦ Both physically incapable of performing some of the
essential functions of aircraft mechanic position
Durden v. Department of Homeland Security,
108
M.S.P.R. 539 (2008)
Employee in positions covered by 5 CFR 339
may be ordered to take a medical
examination in these instances
◦ Prior to reemployment on the basis of full or partial
recovery from a medical condition
◦ On a regularly recurring, periodic basis
◦ Whenever there is a direct question about the
emp
loyee’s ability to meet the physical or medical
requirements of the position
◦ Clark v. DoD,
109 FEOR 316 (EEOC,2009)
Confirm Medical Exam Meets Requirements of
5 CFR 339.301
◦ There may be no basis for agency to order medical
exam
◦ An agency may offer—not order– a medical
examination(including a psychiatric eval.)
◦
Doe v. Benefit Guaranty Corporation,
117 M.S.P.R.
579 (2012)
Agency may establish physical requirements
without OPM approval when
◦ Considered essential for successful job
performance
◦ Clearly supported by the actual duties of the
posi
tion
◦ Documented in the position description
OPM or agency can establish medical
standards
OPM – for a government wide occupation (i.e., an
occupation common to more than one agency
Agency -- for positions that predominate in that
agency (50 percent or more of the positions in a
particular occupation)
◦ Must be established by written directive and
uniformly applied
◦ Must be directly related to the actual requirements
of the position
Requirements for Medical Evaluation Programs
◦ Agency may establish periodic examination or
immunization programs by written policies or
directives
◦ Purpose is to safeguard the health of the employees
whose work may subject them to health or safety
risks
Agencies may order medical examination only
in limited circumstances
◦ Applicant prior to appointment or selection
◦ Individual who is being reemployed on basis of full
or
partial recovery from a medical condition
◦ Employee released from competitive level during
RI
F if position with reassignment rights has medical
standards or physical requirements different from
those required in current position
◦ Physical requirements, medical standards, or a
med
ical evaluation program necessary for the
position
History of Medical Condition Considered
Disqualifying in Certain Situations
◦ Only if condition is normally disqualifying
◦ Recurrence cannot medically be ruled out and
◦ Duties of the position are such that recurrence
would pose reasonable probability of substantial
harm, not “high probability of hazard”
Slater v. Dept. of Homeland Security,
108 M.S.P.R.
419 (2008)
Requirements for Ordering Psychiatric
Medical Examination
◦ Conducted
In accordance with accepted professional standards
By licensed practitioner or physician
◦ Used for legitimate inquiry into mental fitness to
perform duties without undue hazard to employee
or others
◦ Requirements for Ordering Psychiatric Medical
Examination, cont.
– Results of general exam ordered by agency indicates
no physical explanation for behavior or actions
– Psychiatric exam specifically called for in position with
medical standards or subject to medical evaluation
program
Requirements for Ordering Psychiatric
Medical Examination, cont.
Agency can not discipline employee for disobeying
order to take psychiatric exam if no evidence that
Employee’s behavior affected safe and efficient
performance of self or others
A Psychiatric examination is specifically called for in a
position having medical standards or subject to a medical
evaluation program
L’Bert v. Dept. of Veterans Affairs
,
88 M.S.P.R. 513 (2001)
Agency must show link between order for
medical examination and legitimate business
concern
◦ Business concern must relate to the requirements
of the job
Must offer opportunity for physician of
employee’s own choice
Agency pays for ordered examinations
Direct Threat – 29 CFR 1630.2
◦ A significant risk or substantial harm to the health
and safety of the employee or others
◦ That cannot be eliminated or reduced by reasonable
accommodation
◦ Individualized assessment of employee’s ability to
safely perform essential functions of job
Direct Threat – 29 CFR 1630.2
◦ Assessment must be based on reasonable medical
judgment
◦ Medical judgment must rely on
the most current medical knowledge and/or
the best objective evidence
◦ Agencies should consider
Duration of the risk
Nature and severity of the potential harm
Likelihood that potential harm will occur
Imminence of potential harm
Direct Threat – 29 CFRF 1630.2, cont.
◦ Agency can consider advisability of using enforced
leave or indefinite suspension to remove employee
from workplace if it has adequate medical
justification
◦ “Indefinite suspension” means “the placing of
employee in a temporary status without duty and
pay pending investigation, inquiry, or further
agency action” 5 CFR 752.404(d)
◦ Employee must be restored to duty once agency
learns employee is fit for duty
When Medical Exam May be Offered
◦ Most employees can not be ordered to take fitness-
for-duty exam because not covered by 5 CFR part
339
◦ Can offer exam when employee:
Requests, for medical reasons, a benefit or special
treatment (e.g., change in duty status, working
conditions, or reasonable accommodation)
Has performance or conduct problem that may require
ag
ency action
Considerations in Offering Medical Exam
◦ State reason for the offer
◦ State consequences of failure to cooperate, such as
Denial of employee request for benefit/privilege
Initiation of disciplinary or performance-based actions
without reference to medical condition
◦ Agency designates and pays for examining medical
professional
Insufficient/Inconclusive Medical
Documentation
◦ Agency may request additional medical information
or offer agency examination
◦ Enforced leave or indefinite suspension to remove
employee from workplace can be considered if
agency has adequate medical justification
Insufficient/Inconclusive Medical
Documentation, contd.
◦ Agency may act on information currently before it
◦ Agency may take disciplinary action
◦ MSPB will not accept physician’s “expert” testimony
if it is
Unsupported by medical documentation or tests
Drawn from the employee’s self-reports
Avant v. Dept. of the Navy,
60 MSPR 467 (1994)
Insufficient/Inconclusive Medical
Documentation, contd.
◦ MSPB found unsworn, undocumented doctor’s
statement was insufficient when agency physician
presented examination results
Johnson v. Dept. of
the Navy,
58 M.S.P.R. 386 (1993)
◦ In instance of employee’s conflicting medical
documentation, MSPB gave deference to testimony
of agency’s medical officer due to his extensive
review of medical history and facts
Lassiter v. Dept. of Justice,
60 M.S.P.R. 138 (1993)
Insufficient/Inconclusive Medical
Documentation, contd.
◦ Agency finding that medical information is
insufficient/inconclusive usually requires opinion of
agency/contract physician
◦ Agency action must be based on management
decision, not just a medical opinion
If the agency has a reason to believe a
medical problem is affecting performance or
conduct
◦ Ask the supervisor to observe closely
◦ Talk to advisors (e.g., medical professionals)
◦ Discuss the situation with the employee, including
an
y
concerns about safety
◦ Refer the employee to the Employee Assistance
Pro
gram
◦ Ask for medical documentation
The agency must consider all medical
documentation received from employee
For positions covered by 5 CFR part 339,
employee is obligated to submit to a properly
ordered medical examination
Requesting medical documentation requires
careful consideration
◦ Is there objective basis for requesting medical
documentation?
◦ What documentation will be requested?
◦ Who will receive and review it
◦ Is there authority to order medical examination?
◦ Is there basis to offer medical examination?
Take performance-based or disciplinary
action when appropriate
QUESTIONS
Federal Occupational Health
Contact
Brandon Furhman
Phone: 301-594-4788
Secured Fax: 301-594-3321
Medical records can be sent electronically:
medical.employability@foh.hhs.gov
