By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts; and Chair, IACP Legal Officers Section
henever a chief has reason to suspect that an officer is unable to perform the essential functions of the job because of a medical or a psychological condition or impairment, a fitness-for-duty evaluation (FFDE) may be ordered.
Depending on whether the apparent cause is physical or psychological, the evaluation should be conducted by the appropriate medical professional—a medical doctor, a psychologist, or a psychiatrist.
The referral for an FFDE must be based on objective criteria that lead the chief to question whether an employee can safely or effectively perform normal duties with a medical or a psychological condition or impairment. In reaching this conclusion, a chief may take into consideration not only the chief’s own observations, but also those of other department members, and those of members of the public as well as other reliable evidence.
Chiefs must be prepared to show that requests for an FFDE are not retaliatory or otherwise improperly motivated.1 Complaints of harassment or claims under the Americans with Disabilities Act (ADA) are not unusual after an employee has been ordered to submit to an FFDE.2 Federal law prevents federal employers from requiring psychological exams of employees who claim to be whistleblowers.3 The same is often covered by so-called whistleblower laws in various states.
An FFDE has been found appropriate where
- an officer was accused of abusing a citizen with the officer’s firearm;4
- an officer exhibited excessive absenteeism, tardiness, high use of sick leave, and rapid variations in mood;5 and
- an officer was making threats of physical harm.6
However, the following have been found not to justify an FFDE referral:
- Use of obscene language to another police employee7
- In retaliation against a captain who had filed a grievance protesting the chief’s order banning a cartoon in the fire station8
In upholding an FFDE referral, the United States Court of Appeals for the Ninth Circuit defended a mandatory FFDE of a police officer. The panel wrote that precautionary “psychological examinations can sometimes satisfy the business necessity standard, particularly when the employer is engaged in dangerous work. . . . Undisputed facts show that [the officer] exhibited highly emotional responses on numerous occasions in 2005, four occurring in a single month immediately prior to his referral. . . . Police officers are likely to encounter extremely stressful and dangerous situations during the course of their work.”9
Selecting an Examiner
There are rarely, if ever, any state statutes or regulations governing by whom an FFDE must be conducted. Regardless, such evaluations should be conducted exclusively by qualified medical or mental health professionals.
Medical evaluations should preferably be performed by a licensed medical doctor; however, it is not unheard of to have a nurse practitioner or a physician’s assistant prepare such reports or at least conduct the bulk of the medical exam. Chiefs should keep in mind that the qualifications (training and experience) of any examiner may be challenged in an administrative or a judicial forum at some point. It would be frustrating, embarrassing, and expensive to have the employer’s examiner disqualified or the examiner’s report discounted.
Psychological exams are even more susceptible to such challenges than medical evaluations. Although psychiatrists are the only medical examiners with specialty training in medical disorders and conditions and MD (Doctor of Medicine) degrees, it is more common and often more appropriate to employ a psychologist (no MD) to prepare an FFDE—especially if the psychologist specializes in police work.
When selecting a professional to perform either a medical or a psychological FFDE, chiefs should verify that in addition to training, education, and experience in the diagnostic evaluation of medical, mental, and emotional disorders, the individual also has training and experience in the evaluation of law enforcement personnel. The chosen professional should be familiar with police medicine and police psychology literature. The professional should be familiar with relevant state and federal statutes and case law, as well as other legal requirements related to employment and personnel practices (for example, disability, privacy, third-party liability, and so on). The chief should ask for a copy of the examiner’s credentials, certification, resume, and so on and place copies of each document in a file for future reference.
It is important that the chief inform the examiner of the essential functions of the job. This requires more than simply faxing a copy of a job description to the physician’s or the psychologist’s office. Personal discussion is helpful in ensuring the exact nature of the job is understood and the referral is appropriate.
The Employer Is the Client
The examiner and the employee should be advised that the employer is the client, not the individual being evaluated. While some examiners require the employee to sign a form indicating they are voluntatily agreeeing to be examined, this is mostly for the examiner’s personal liability purposes. Employees should be ordered by the employer to sign a release authorizing the examiner to share all relevant information with the employer and to make a report on an officer’s fitness for duty.
The normal conflict of interest considerations apply to examining physicians or psychologists. They must decline to evaluate any person with whom they have or have previously had a personal, professional, legal, business, or other relationship that might be expected to cloud their objectivity or impair their ability to render objective, competent, and effective evaluations. The examiners should not refer the employee to the examiners for care or to their clinics, hospitals, or business associates for treatment to address any issues noted in the evaluation. If an exception is absolutely necessary, all parties should disclose the potential conflict of interest from a multiple relationship and give their informed consent.
In order to conduct a thorough FFDE, examiners usually require reviewing all relevant background information, especially items related to job performance and functioning. Essentially all parts of an employee’s personnel file might be relevant. This might include performance evaluations, commendations and complaints, discipline, Internal Affairs reports, litigation, Brady material, and medical/psychological reports. If the employee has undergone medical or psychological treatment, records of this might be requested. The chief may order the employee to either obtain these records or to sign a form authorizing the employer to obtain copies. However, it is best if the evaluator convinces the employee to sign a release for this information so that the employer is not in possession of unrestricted private information. The employer should not be in possession of these records, in general. It is the evaluator who needs this information, not the employer.
While there are rarely any statutory medical or psychological suitability standards for incumbent police officers, many states do have entry-level medical standards. When such standards are available, these can serve as benchmarks and will be appreciated by most examiners as objective sets of criteria.10
One of the benefits of employing these standards is that, often, they have been adopted after an extensive job-task analysis. Therefore, they are more likely to sustain the kinds of court challenges posed to medical standards. (It is unlikely that any single municipality could afford the time and money it takes to develop defensible medical standards.) Chiefs should determine if their states maintain a list of approved physicians for conducting preemployment public safety medical exams. While many departments find it simpler to use such doctors, if they choose not to, chiefs should be sure their doctors follow the same standards or be prepared to defend why they do not.
Most states have not adopted psychological standards for police officers. Some, however, have published a list of psychiatrists and psychologists that are approved for conducting entry-level police officer candidate psychological screening. The IACP maintains a list of police psychologists in the Police Psychological Services Section. This list is a good resource for chiefs to consider when selecting a person to conduct psychological screenings or FFDEs.
The form of psychological FFDE and testing may vary, but generally includes the following:
- A review of the requested background information (for example, personnel records, medical records, incident reports, and memos)
- Psychological testing using assessment instruments (for example, personality, psychopathy, cognitive, specialized) appropriate to the referral questions
- A comprehensive, face-to-face clinical interview
- Collateral interviews with relevant third parties, if deemed necessary by the examiner
- Referral to and consultation with a specialist, if deemed necessary by the examiner11
An FFDE report will usually contain a description of the reason for the exam, the methods employed, and, if possible, a clearly articulated opinion that the individual at that time is either fit or not fit for unrestricted duty. A report that a person is not fit for unrestricted duty should contain a description of the employee’s functional impairments or job-relevant limitations. Some departments may also request an estimate of the likelihood of and a time frame for a return to unrestricted duty, and the basis for that estimate. This is a determination that should be made beforehand by the employer.
Often an examiner will be asked for a recommendation for work restrictions or accommodations in order for the employee to return to full or modified (light) duty. However, most will do so only if it is clear that the actual determination as to whether a recommended restriction or accommodation is reasonable is made by the employer, not by the examiner.
Confidentiality of Reports
Medical and psychological fitness for duty evaluations should be handled as any other medical records in an employee’s files. Preferably, they should be filed separately. If kept in a personnel file, they should be in a clearly labeled, sealed envelope. Only those with a need to know should be made aware of the reports’ findings (this may include immediate supervisors, if the situation warrants).
Chiefs who have sufficient objective indications to question an officer’s fitness for duty may want to place the employee on paid administrative leave pending the outcome of the FFDE. (Please note: During this leave period, no details or overtime should be made available. If the union requests, an accommodation can, but need not, be made to make up for such lost work opportunity upon the officer’s return to duty.)
Should the examiner find the officer fit for duty, the officer may be returned to full duty status. However, if a determination is made that the person is unfit for unrestricted duty, the chief’s action will depend on the nature and the extent of the problem. Consultation with municipal labor counsel is appropriate in such cases.
If the medical examiner renders an opinion that the employee is unable to work and the cause is a job-related injury or illness, the employee may be eligible for injured-on-duty leave. (Please note: Agencies should check with labor counsel to determine whether psychological disability alone will qualify for such leave.) If the problem is expected to be permanent or of long duration, consideration should be given to a disability retirement—voluntary or involuntary.
Should the physician or psychologist indicate that with some accommodation the employee could perform the essential functions of the job, the chief should consider whether such accommodations are reasonable and discuss the same with labor counsel. In fact, psychiatrists or psychologists should not include this information unless the employer specifically requests it. If requested, it should be in a separate report, or perhaps even better, should be performed by a different examiner, whenever possible.
Lastly, transfer to a vacant position for which a disabled person is qualified is a required accommodation under the ADA and many states’ antidiscrimination laws. In light of the May 24, 2011, regulations from the Equal Employment Opportunity Commission on the ADA Amendments Act, chiefs should make a sincere effort at engaging in a process of trying to reach a reasonable accommodation with a qualified individual. A call to labor counsel is recommended. ■
1See Jackson v. Lake County, No. 01-CV-6528, verdict rptd. at 41 (2037) G.E.R.R. (BNA) 1219 (N.D. Ill. 2003).
2Coffman v. Indianapolis Fire Dept., 578 F.3d 559, No. 08-1642, 106 FEP Cases (BNA) 1793, 22 AD Cases (BNA) 360, 2009 U.S. App. LEXIS 18717 (7th Cir.); Murry v. U.S. Attorney General, 233 Fed. Appx. 911, No. 06-15764, 2007 U.S. App. Lexis 11473 (unpub. 11th Cir. 2007); Caver et al. v. City of Trenton, 420 F.3d 243, No. 04-2600, 2005 U.S. App. Lexis 18432 (3d Cir. 2005); Smith v. City of Salem, No. 03-3399, 2004 U.S. App. Lexis 10611, 2004 FED App. 0160P (6th Cir. 2004); Bowen v. Parking Auth. of Camden, 214 F.R.D. 188, No. 00-5765, 2003 U.S. Dist. Lexis 6913, 91 FEP Cases (BNA) 1200 (D.N.J. 2003); McKnight v. Monroe Co. Sheriff’s Dept., No. IP 00-1880-CB, 2002 U.S. Dist. Lexis 18148, 90 FEP Cases (BNA) 35 (S.D. Ind. 2002).
3Whistleblower Protection Act of 1989, H.R. 4311, P.L. 101-12 (April 10, 1989), codified at 5 U.S.C. 1221.
4Conte v. Horcher, 365 N.E.2d 567 (Ill. App. 1977).
5Wuertz v. Wilson, 922 S.W.2d 268 (Tex. App. 1996).
6Flynn v. Sandahl, 58 F.3d 283, 10 IER Cases (BNA) 1187, 1995 U.S. App. Lexis 14902 (7th Cir.).
7Maplewood and Law. Enf. Labor Serv., 108 LA (BNA) 572 (Daly 1996).
8Watts v. Alfred, 794 F. Supp. 431 (D.D.C. 1992).
9Brownfield v. City of Yakima, 612 F.3d 1140, No. 09-35628, 2010 U.S. App. Lexis 15324 (9th Cir.).
10See Sager v. County of Yuba, 156 Cal. App. 4th 1049 (2007), which upheld the use of California’s POST standards.
11See “Fitness-for-Duty Guidelines,” IACP Police Psychological Services Section (Denver, Colo.: 2009), http://www.theiacp.org/psych_services_section/pdfs/Psych-FitnessforDutyEvaluation.pdf (accessed July 21, 2011).
Please cite as:
John M. (Jack) Collins, "Selection of Professionals for Fitness-for-Duty Evaluations," Chief’s Counsel, The Police Chief 78 (August 2011): 1213.