Following Up on Concerns about a Remote Employee
Q. One of our remote employees had what appeared to be a seizure during a company Zoom call. Even though he insists he is fine, we are very concerned about his wellbeing. Can we ask him to complete a fitness-for-duty certification as a way to encourage him to seek medical care?
A. The Americans with Disabilities Act (ADA) allows you to ask generally if he is feeling well or if he is able to perform job functions, but the law only permits an employer to request medical documentation or certification under limited circumstances. If the employee is not requesting an accommodation due to the seizure, the employer may only request documentation if (i) it reasonably believes the employee poses a direct threat to himself or others if the employee does not seek medical care, or (ii) the employee has a known disability, and the employer has reason to know that the employee is experiencing workplace problems because of the disability. In determining whether this employee poses a direct threat to himself or others, you need to first consider any safety risks associated with his position, any consequences of his impaired ability to perform his duties, if it has been an ongoing issue, and whether he has had a history of seizures at work prior to this incident.
Since you are unsure whether he has actually had a seizure, he insists he is fine, and the apparent seizure occurred during a remote Zoom call, there is no reason to believe that he poses a direct threat to himself or others. Therefore, you may not require him to complete a fitness-for-duty certification.
Jason R. Mau is an shareholder in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or jmau@parsonsbehle.com.
