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FITNESS FOR DUTY CASES
Not all states have state statue, code or regulatory instruments to address legal and professional concerns in Fitness for Duty (FFD) examinations. If a employer does not have a contractual agreement with the employee's union, then it becomes incumbent upon the agency's management to determine the purpose and scope of any medical or psychological testing of personnel.
Unfortunately, this gives management the exclusive privilege of sending employees to a medical/psychological examination whenever they deem it necessary. Because police/emergency services workers cannot choose to disobey or ignore an employer's directive to be medically or psychologically examined, sending an officer to a FFD examination will be potentially hazardous, due to the scope, nature and content of the examination. There is no known restriction on what the doctor or examiner may re-convey back to the officer's agency.
An employee sent to a FFD does not have a right to refuse the examination. Employers will typically threaten an employee with termination if he/she refuses the exam. The reasons an employer can order an exam are vague at best. The officer will be forced to sign a waiver or release with the examiner so that said examiner is free to convey information about an officer to his or her respective agency. At this point in time the officer should make a notation on the Authorization that he does not agree to the contents of the authorization and that he will only authorize the release of the conclusion to his Department. Typically, FFD's are personal, bias, intrusive, and forced upon an employee.
There is no current restriction on what the examiner may recommend as to a disposition when an examination is completed. If the examiner determines that an employee/officer is medically unfit and may not posses a weapon, then the Municipality has a green light to suspend, with or without pay and/or terminate the officer. Police are extremely vulnerable as they may be dismissed for inability to perform duties. An agency could use a medical/psychological opinion to terminate an employee with no prior disciplinary infractions and to subvert the entire system utilized in the chain of progressive discipline.
Although not every state has statute that governs the institution of FFD's, there are Federal protections afforded by the American with Disabilities Act (ADA) of 1990. The ADA is a series of federal laws designed to protect workers in any workplace from discrimination due to perceived or actual bona fide disabilities. The ADA provides protections for workers whom may be not actually be disabled, but are perceived to be disabled or impaired by the employer. Specifically an employer may be civilly liable for discriminatory practices were an employer treats an effected worker as if they are mentally or physically impaired. Unfortunately, this protection is minimal when applied to police personnel and has many times failed when litigating for police personnel.
The ADA provides for provisional protections for a workers medical records. Specifically, medical and or psychological information may not be in the same file as typical personnel information. The ADA provides a worker's medical information is to be contained, locked and secured with limited access. Access is typically only afforded to management to provide employees with a reasonable ADA accommodation or request for accommodation.
Two recent cases of interests under ADA litigation are McGreal v. Ostrov and Jackson v. Lake County Illinois, 01-cv-6528,(nd111 2003). In McGreal, a veteran policeman was forced to submit to an intrusive Fitness for Duty Exam and subsequently terminated as a result of the examination. It settled with a non-jury settlement in favor of McGreal, for $900,000.00.
In Jackson, a federal jury awarded a public works employee $325,000.00, not including front and back pay for forcing him to submit to an intrusive psychological fitness for duty examination. The plaintiff was labeled and treated as if he were disabled mentally. The federal judge in Jackson also found that the employee's management must employee a reasonable and objective person standard to decide if an employee must submit to a Fitness for Duty Examination and also held that public employers can not solely rely on the pretense that fitness is the sole determinant of medical personnel.
Of equal importance in these instances is the application of HIPAA to the test results. It has not been settled either way as to this application and for this reason it is strongly urged that when signing the Release for the examination, the officer place language asserting his HIPAA rights prior to his signature. Scan the Release form prior to signing it and cross-out any reference to releasing your HIPAA rights. You are signing the “Release” document and submitting to the examination because you are ordered to do so, you are not to relinquish any of your your rights under HIPPA, ADA or any other applicable protections afforded to you.
In New Jersey, several cases concerning non-fitness were successfully reversed in the Office of Administrative Law, (OAL). In re: Recine v. Hamilton, and Kristensen v. Fair Lawn, et al.
Useful information concerning medical/legal issues in police science may be found in the AELE Law Enforcement Legal Center at www.aele.org or the psychological services section of the International Association of Chiefs of Police at www.theiacp.org.