Fit-for-Duty Evaluations

By JOHN K. MURPHY

Your chief calls you into the office and orders you to undergo a fit-for-duty (FFD) examination because of documented poor performance, excessive use of sick leave, and other documented behavior that violates policy. You are a military veteran who has been dealing with many issues, among them depression and post-traumatic stress disorder (PTSD). Is this legal, and can the chief do this?

The short answer is yes. It is legal with the caveat that the order for an FFD exam be for a legitimate evaluation process and not as a mechanism to terminate a member of an organization. The purpose should be that the firefighter has an opportunity to return to work, possibly with some conditions for improved future behavior or performance as a condition for return.1

The exam cannot be used to verify whether the employee has a disability or to determine the medical condition’s severity, but you may use it to obtain disability-related information designed to assess whether the employee can safely and properly perform his job responsibilities.(2-3)

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Medical FFD

An FFD is appropriate when used to determine whether a firefighter who has been off work for an extended time (because of an illness, a surgery, or an extended leave of absence) can return to work. In return-to-work scenarios, an FFD may be conducted if the chief questions whether an employee is ready to come back after an injury, even though the worker’s doctor has given the all-clear. For example, a firefighter is suffering from chest pain and it is discovered that he needs a cardiac catheterization and stent placement. After the firefighter undergoes surgery and cardiac rehabilitation, the cardiologist clears him to return to work. The department wants to ensure the firefighter can perform the essential elements of the job and may seek a second opinion through the FFD testing process.

Psychological FFD

Sometimes, an FFD is a medical evaluation; other times, it is a psychological evaluation. Legitimate reasons exist for a psychological FFD—for example, if the firefighter files a claim for mental health reasons such as depression or PTSD.

Ordering an employee to submit to a psychological FFD could be construed as a form of retaliation. In a police case, the Sixth Circuit affirmed a liability award against a city over the wrongful termination of two women police officers who were found psychologically unfit for service. The jury awarded each of the plaintiffs $2.5 million—$1 million in compensatory damages, $223,080 in back pay, and $1,276,920 in front pay. (See Denhof v. City of Grand Rapids, #05-1819, 494 F.3d 534, 2007.) Since the police perform more psychological FFDs, the International Association of Chiefs of Police Psychological Services Section has published Psychological Fitness-for-Duty Evaluation Guidelines.4-5

In a firefighter case, Stow Firefighters, IAFF Local 1622 v. Stow [(Case No. 25209), 193 Ohio App.3d 148, 2011], the city of Stow suspended the firefighter for three days for allegedly harassing and acting discourteously, disrespectfully, and unprofessionally toward a member of the city’s parks department and for supposedly being insubordinate and dishonest during an investigation of that alleged misconduct. At the same time that he was suspended, he was also ordered to submit to an FFD evaluation by a specific psychologist and was placed on involuntary paid leave pending that evaluation. Following the FFD evaluation, the city continued him on involuntary leave but changed it to unpaid leave and told him he could not return to work until the psychologist released him for duty. At the end of the unpaid leave, he was discharged because his leave had expired and the psychologist had not released him for duty. The firefighter filed a grievance; the arbitrator ruled in his favor, but the ruling was overturned by the courts, which stated that the arbitrator exceeded her authority and the fire chief, under the management rights clause in the collective bargaining agreement, had the authority to order a firefighter to undergo an FFD examination, including a mental health evaluation. The lesson: When a department sends a firefighter for a psychological FFD, it must have an objective, not subjective, reason for the evaluation.6

Employer Ordering an FFD

Legally, whether an employer can require an FFD exam depends on your condition and your job. If your condition is one that could be reasonably thought to impair your ability to perform your job, then your employer can likely require an FFD examination before you return to work. However, if your condition qualifies as a disability under the Americans with Disabilities Act (ADA), your employer’s options are much more limited. The rules are stricter if the employee has a disability, since FFD exams may reveal information about an employee’s disability and are, therefore, regulated by the ADA. If an employee has a disability, an employer may require an FFD exam only if the exam is job related and consistent with business necessity. This standard will generally be met if the employer has a reasonable belief that (1) the employee’s condition may prevent the employee from performing the job’s essential functions, or (2) the employee poses a direct threat to his own safety or the safety of others. The employer’s belief must be based on facts, not on stereotypes or assumptions about the employee’s condition.

In our scenario, the employer might be justified in requiring an exam if your behavior prior to taking leave caused the employer to have objective, reasonable concerns that you created a safety risk or could not perform your job. If, however, your behavior and conduct did not give the employer legitimate cause for concern and nothing suggests that you are unable to do your job safely, the employer would be hard pressed to justify an exam. In other words, the employer may not simply assume that anyone with a mental disability is by definition dangerous or incapable of excellent work. But an employer who has legitimate, factual reasons to be concerned about your ability to do your job without undue risk based on your behavior and statements will likely prevail.

In Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010), the department ordered a psychological FFD for one of its police officers because of a postconcussion period when the police officer began acting erratically; responded emotionally and angrily during conversations with coworkers; lost control during a traffic stop; was accused of a domestic altercation with his wife; and made comments about his situation such as, “It doesn’t matter how this ends” and “I’m not sure if it’s worth it.” The employer required the officer to take a psychological FFD exam to stay on the job, and the Ninth Circuit Court of Appeals upheld its right to do so. The Court cautioned that, although employers could abuse preemptive psychological exams (required while the employee was still on the job as an employee seeking to harass employees or force them out), it was justified in this case by the officer’s volatile behavior and the stress and danger inherent in his job. Because the employer had reasonable cause to question the officer’s ability to do his job, the exam did not constitute disability discrimination under the ADA.

Policy Required

The department must have a policy in place to require an FFD evaluation that references the need, the process, and some standard the department is seeking as an outcome for an FFD evaluation.7

Often, a firefighter is referred for an FFD and no standards are provided for the medical practitioner or psychologist to follow; the FFD’s purpose becomes a guessing game. Some departments will use the National Fire Protection Association 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments, guidelines for the medical practitioner to follow or a job analysis developed by the department.8 If your firefighters are covered by a collective bargaining agreement, some provisions in that document may limit the scope of an evaluation. As police departments provide more psychological testing for their officers than the fire service, a great reference for FFD evaluating physicians is the California’s Peace Officer Psychological Manual.9

Prehire Examinations

When you first hire a firefighter, perform a prehire baseline medical and psychological examination. Of course, you must present a conditional offer of employment to the candidate firefighter prior to performing these evaluations, but at least your baseline evaluations provide a starting point for the medical provider to determine if there are changes or a decline of mental health or physical abilities. The department also must screen the medical personnel hired to perform the FFD evaluation so they are aware of the scope of responsibility for the firefighters and the challenges faced by the firefighter while on the job.

Volunteer Firefighters

There are no compulsory standards for a volunteer firefighter FFD examination unless the department has a policy requiring one and the examination is based on objective standards. Volunteer firefighters face a unique challenge as they experience the same or similar situations as career firefighters, yet they may not have the same or similar resources for annual fitness examinations and psychological support and are generally left out of comprehensive coverages under state and local laws dealing with cancers and long-term physical or psychological health issues. As the chief of a volunteer agency, make it one of your responsibilities to ensure these resources are available for your firefighters.

Final Thoughts

An FFD evaluation is a useful tool to ensure the firefighter can perform the essential elements of the job.
You must have an FFD exam policy that lists the evaluation’s various parameters.
The policy must apply evenly to all employees.
The policy must state that an FFD may be required for a return to work involving intermittent leave or reduced work schedules.
The department must provide a list of essential job functions, a job analysis, and a copy of NFPA 1582 to the medical provider performing the FFD. The physician or psychologist must be aware of the applicable chapter in NFPA 1582 that applies to the incumbent FFD testing requested.
The department should not ask for second or third opinions if it doesn’t like the outcome of an FFD. However, the employee may request a second opinion, for which the department will pay.
If the two evaluations have different results, you may use a third provider to offer a final opinion based on the record or on his own FFD to determine the final outcome.
The cost of the initial FFD is the responsibly of the employer.

Performing an FFD examination is another tool to determine whether the firefighter has the physical or mental fitness to perform the essential elements of the job. It can be a legal slippery slope if performed for the wrong or punitive reasons.

References

1. www.Nolo.com. “Can my employer require me to take a fitness-for-duty examination?” https://bit.ly/2Tzi3wZ.

2. www.laboremployment perspectives.com. “Employers May Require Fitness for Duty Evaluations in Some Circumstances, But Must Avoid Violating ‘Perceived or Regarded as Disabled’ Protections.” https://bit.ly/2JNMpw6.

3. U.S. Equal Employment Opportunity Commission. (July 27, 2000). “Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA).” Notice 915.02. https://bit.ly/1N94QHb.

4. AELE Monthly Law Journal. (November 2009). “Retaliatory Personnel Action – Part Three: What constitutes employer retaliation?” https://bit.ly/2U4Htqx.

5. Denhof v. City of Grand Rapids, #05-1819, 494 F.3d 534, 2007. https://bit.ly/2Cxdcqj.

6. Stow Firefighters, IAFF Local 1622 v. Stow (Case No. 25209), 193 Ohio App.3d 148, 2011. https://bit.ly/2YoF1Kz.

7. Baltimore Police Department. (1 July 2016) Policy 1733: Fitness for Duty Evaluations. https://bit.ly/2WqgnaT.

8. National Fire Protection Association 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments.

9. California Commission on Peace Officer Standards and Training. (2019) Peace Officer Psychological Screening Manual. https://bit.ly/2JCkoap.

JOHN K. MURPHY, J.D. M.S, PA-C, EFO, began his fire service career as a firefighter/paramedic and retired as a deputy chief after 32 years of service. He is an attorney licensed in Washington whose focus is on firefighter health and safety, firefighter risk management, employment practices liability, policy, internal investigations, and expert witness litigation support. Murphy is a lecturer, an educator, an author, a legal columnist, and a blogger. He is a cohost of Fire Engineering’s Fire Service Court Blog Talk radio show and presents at the Fire Department Instructors Conference International.