Fitness For Duty Policy
Title:
Fitness for Duty
Effective Date:
September 23, 2024
Responsible Office::
University Human Resources
Revision Date:
First Version
I. Scope
This policy applies to all employees of William & Mary (the “University”) including faculty, staff, and student employees at all schools and campuses, regardless of employment classification or full-time or part-time status.
This policy only applies to situations where an employee is: (1) having observable difficulty performing essential job functions in an effective manner, or (2) posing a serious safety threat to self or others. The policy prescribes the circumstances under which an employee may be referred to an independent, licensed health care evaluator for a fitness for duty (FFD) evaluation should either of those situations be present.
This policy does not apply to employees with short term, infectious/communicable diseases (e.g., flu, colds). If an employee exhibits symptoms of an infectious/communicable disease, the supervisor may ask the employee to leave the workplace in order to have their symptoms evaluated by the employee’s own health care provider.
II. Purpose
The University is committed to maintaining a safe and healthy work environment for all employees, students, and visitors. For the University to accomplish this, every employee must be capable of performing their job duties in a safe, secure, and effective manner to safeguard the health and safety of those around them. The essential duties for an employee are based on their position description and departmental, program, and university needs.
A fitness for duty evaluation is conducted to address behavioral changes in an employee that may pose a potential safety threat to self or others in the workplace or that impairs the employee’s ability to perform the essential functions of their job, with or without an accommodation. Application of this policy is not intended as a substitute for university policies or procedures related to chronic performance or behavioral conduct problems or as a substitute for discipline measures. Supervisors shall continue to address unsatisfactory performance or misconduct through the performance appraisal process to implement appropriate corrective or disciplinary action.
The University is required to comply with federal disability law, primarily the Americans with Disabilities Act of 1990 (ADA). Qualified employees with disabilities are protected from discrimination, including harassment, and are entitled to reasonable accommodations for known physical and mental impairments, if necessary, to assist the employee in performing their job. This policy is not intended to supersede or modify the procedures applicable to employees seeking reasonable accommodations under the ADA.
In general, the ADA prohibits: (1) employers from requiring an employee to undergo a medical examination; and (2) employer inquiries into whether an individual has a disability. However, the protections afforded to employees by the ADA are not without limits. Federal law permits the University to require a medical examination of an employee if the requirement for the examination is job-related, consistent with business necessity, and if the University has a reasonable belief that:
- the employee's ability to perform essential job functions may be impaired by a physical, mental or emotional condition; or
- an employee may pose a direct threat (i.e., significant risk of substantial harm to the health and safety of self or others) due to a physical, mental or emotional condition.
This policy does not limit the University’s right to take employment action under its normal disciplinary and performance management policies and procedures. Employees who fail to perform their job functions and/or engage in misconduct may face disciplinary action up to and including termination notwithstanding a referral for a fitness for duty evaluation.
The employee’s work performance is the basis for continued employment. Participation in a treatment or rehabilitation program does not guarantee continued employment and will not necessarily prevent disciplinary action for violation of university policies.
III. Definitions
Decision-Making Authority means the appropriate senior administrator charged with making a final decision on Fitness for Duty. The Decision-Making Authorities shall be the Executive
Vice President (EVP) for Finance & Administration, in the case of non-instructional employees, and the Provost, in the case of instructional faculty.
Fitness for Duty (Fit for Duty, FFD) means possessing the physical, emotional, and mental capacities to safely and effectively perform the essential functions of an employee’s job, with or without reasonable Americans with Disabilities Act accommodation, in a manner that does not present a direct threat of harm to self or others. Fitness for duty includes, but is not limited to, being free of alcohol- or drug-induced (regardless of it being legitimately prescribed) impairment that affects job functioning.
Fitness for Duty Evaluation (FFD Evaluation) means a professional assessment of an employee’s physical, emotional, or mental capacities. It is conducted by an independent, licensed healthcare provider with expertise to determine whether an employee is capable of effectively performing their essential job functions without posing a threat to their own safety or the safety of others.
Fitness For Duty Review Team (FFD Team) means the appropriate parties/offices (based on the specific situation) responsible for coordinating and reviewing the fitness for duty evaluation. The FFD Team typically includes representatives from University Human Resources (UHR), William & Mary’s Police Department (WMPD), and the Office of Compliance & Equity. If a faculty member has been referred, the team also includes the President of the Faculty Assembly and a representative from the Office of the Provost.
Independent Medical Evaluator means an independent, licensed health care professional who has not previously provided primary or specialty care for the employee.
Threat Assessment Team (TAT) means the team required by Virginia Code §23.1-805 to implement the University’s assessment, intervention, and action protocol.
IV. Policy
An employee must maintain a fitness for duty required for the safe and effective performance of essential job functions, with or without reasonable accommodation. Each employee is required to report to work in an emotional, mental, and physical condition necessary to perform their job safely and unimpaired , which includes being free of the effects of alcohol and drugs, including prescription or over-the counter medications that may impair cognitive or physical functioning.
Employees must remain Fit for Duty throughout the entire time they are working, including during “on-call” periods, if applicable.
An employee shall be required to undergo a FFD Evaluation when the University has objective evidence that an employee is unable to perform the essential functions of their job due to an emotional, mental or physical condition or poses a direct threat to themselves or others.
V. Procedure
A. Initial Observation and Reporting
An employee who becomes aware that they themselves are not fit for duty, or an employee who observes a coworker, supervisor, direct report, or another employee exhibiting behaviors that indicates the employee may not be fit for duty shall immediately notify their supervisor, the local HR Partner/Liaison, or UHR ([[employeerelations]] or 757.221.3169) of a fitness for duty concern.
Upon notification of a fitness for duty concern, the supervisor and/or reporting employee shall complete an Initial Observation Report Form (Appendix A) and submit the form to UHR within one (1) business day of receipt of the concern.
All acts of violence, threats of violence, or other seriously disruptive behaviors must be reported immediately to W&M Police (757.221.4596) and/or to the Threat Assessment Team (TAT) tat@wm.edu
B. FFD Team Review
Before initiating an evaluation, the FFD Team shall review the Initial Observation Report Form (Appendix A) within two business days of receipt and consult with the employee’s supervisor to gain a clear understanding of the behavior or circumstances that have raised questions about the employee’s fitness for duty. The FFD Team shall review information available in the employees file and information from any threat assessment conducted in compliance with Virginia Code §23.1-805. A member of the FFD Team shall also notify the employee of the opportunity to provide any relevant previous medical or psychological treatment information. The FFD Team shall determine the appropriateness of a fitness for duty assessment within a reasonable time after receipt of the Initial Observation Report form, usually within three business days.
C. Employee Status during Review
An employee referred to the FFD Team is prohibited from being present on university property until completion of the FFD Team’s initial review and the Independent Medical Evaluator’s assessment, if applicable. During this time, the employee will be placed on administrative leave. The FFD Team will determine whether to allow the employee to work off-site or to represent the University in any work-related capacity. The employee will be paid as normal if they are on leave or required to work remotely during this time. The employee must receive written approval from UHR before returning to university property.
D. Evaluation
- Independent Medical Evaluator and Payment
The fitness for duty evaluation, if required by the University, will be referred to and conducted by an Independent Medical Evaluator, selected by mutual agreement between the employee and the University. If mutual agreement is not reached within three (3) business days, or if the employee refuses to or is incapable of participating in the selection, the University will choose the Independent Medical Evaluator. The Independent Medical Evaluator will not be a treating physician of the employee and will not have provided treatment to the employee in the past 24 months. The employee is entitled to request a second opinion, or an additional evaluation from another provider of their choice, [within the specified time frame] and is responsible for paying the cost of any such additional evaluations.
- Results of the Evaluation
The results of FFD evaluations performed by qualified, licensed health care professionals shall be considered valid. Results of the evaluation will be received by UHR and submitted to the FFD Team for a final recommendation to the decision-making authority. The employee shall be notified of the results of the FFD evaluation by UHR. Only necessary information shall be shared with the FFD Team. UHR will communicate to the employee, the employee’s supervisor, and the respective dean or vice president whether the employee may return to work.
After an evaluation, information given to the employee’s supervisor and respective dean or vice president shall be limited to whether the employee may:
- return to full duty;
- not return to full duty, in which case the employee will be referred to UHR for a benefits discussion; or
- return to full duty with reasonable accommodations to meet the Independent Medical Evaluator's recommendations.
- Return to Work
In conjunction with the employee’s supervisor, UHR shall discuss whether any reasonable accommodations are needed for an employee -returning to work. Continued employment shall be contingent upon compliance with recommendations provided by the Independent Medical Evaluator, such as periodic testing, participation in professional counseling and treatment programs, for as long as the Independent Medical Evaluator prescribes.
- Confidentiality
To the extent allowed by law, the University shall protect the confidentiality of the evaluation and the results. Employee medical information provided by the employee to the University is maintained on a confidential basis in accordance with applicable law.
When conducting a mandated FFD evaluation, the University may ask the employee to sign consent forms that permit production of medical health information to the Independent Medical Evaluator. If the employee releases medical health information to the Independent Medical Evaluator, the employee may opt to not have the medical health information released to the University.
VI. Enforcement
A. Employee Status during Review
A referred employee’s failure to fully comply with the FFD process, recommendations, treatment requirements, or proscribed limitations may be cause for disciplinary action, including suspension or termination through the university’s applicable policy. A supervisor’s failure to implement this policy as proscribed may be cause for disciplinary action, including suspension or termination through the university’s applicable policy.
B. Retaliation
Retaliation against any employee who brings forth a good faith concern, asks a clarifying question, or participates in this process is strictly prohibited and individuals will be referred to the Office of Compliance & Equity for potential investigation under university policy.
C. Extension of Timeline.
The FFD Review Team may moderately extend any timeline in this procedure for extenuating circumstances upon written notice to the supervisor and the referred employee.
VII. Authority and Amendment; Implementation
The President has delegated authority to the Chief Human Resources Officer to make revisions or amendments to this policy and to provide guidance on policy interpretation.
This policy was adopted on September 23, 2024.
VII. Related Policies & Documents
Employee Reasonable Accommodations Policy and Procedure
Violence and Threat Management Policy
Appendix A: Initial Observation Report Form
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Appendix A
EMPLOYEE FITNESS FOR DUTY INITIAL OBSERVATION REPORT
Date of Incident:
Time of Incident:
Location:
Employee Name:
ID 93# (if known):
Department:
Job Title:
OBSERVATIONS: (Check all that apply):
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BEHAVIORS |
APPEARANCE |
SPEECH |
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Document other observations related to Fitness for Duty:
Ask employee to explain signs of observed behavior. Document the employee’s response:
Actions Taken (check all that apply):
- Relieved employee from duty (paid administrative leave)
- Removed from worksite
- Confirmed safe transportation plan
- Informed employee of manager's responsibility to report
Supervisor Name and Title
Supervisor Signature Date
