FITNESS FOR DUTY EVALUATIONS:  A SAMPLE POLICY

Most agencies will order or request a psychological fitness for duty evaluation when an employee exhibits behavior that makes us question whether he or she is still fit to carry out their public safety duties.  However, very few of us have comprehensive policies that protect both the agency and employee in these situations.  While most California police agencies have established practices for confidential counseling after critical incidents such as officer involved shootings, many of us do not have consistent practices for the ordering of an evaluation that may lead to the end of a career for the involved employee. 

Because we can compel these evaluations to insure the public safety and guarantee a “stable, reliable and productive workforce” (Yin v. State of California, 95 F.3d 864), it is incumbent upon us that we do so in a fair and consistent manner, and not overstep the limits of our authority.  It would be counterproductive to order the evaluation and face a lawsuit for invasion of privacy or wrongful termination.  (See eg., Pettus v. Cole, 49 Cal. App. 4^th 402.)

The following sample policy is derived from several existing policies throughout the state and incorporates current legal decisions regarding the extent and scope of the evaluations. It is in place in at least two Southern California police departments and has been reviewed and approved by at least one active police labor representation law firm.

Depending upon your labor – management relations and associated contracts, the establishment of a fitness for duty policy may require a “meet and confer” process.  See eg., Holliday v. City of Modesto, 229 Cal. App. 3d 528).  You should consult your legal advisor prior to implementation.  

This policy is intended to be an operational policy.   It is not intended to be advisory regarding what psychological tests should be administered or the criteria you should use in selecting your evaluator, although it does suggest minimum qualifications.  You should consult your existing providers of psychological services regarding their recommendations, licensing, scope of practice, avoidance of dual relationships and other issues important to the practice of psychology, especially in this highly specialized area of fitness for duty evaluations.   

Finally, it is important to stress that a fitness for duty evaluation should not be used as a substitute for discipline or confidential counseling.  Nor should it be conducted just to protect the decision maker.  Ordering a fitness for duty evaluation is a serious matter that can have a long lasting effect on both the employee and organization, as well as the public they both serve.

  Health and Safety Management

  FITNESS FOR DUTY EVALUATIONS (SAMPLE POLICY)                 

PURPOSE

The purpose of this policy is to establish consistent procedures for ordering and implementing psychological fitness for duty evaluations of sworn personnel and other personnel involved in public safety functions.  Such evaluations are necessary for the safety and welfare of the community and department personnel, and to insure compliance with California law.  California Government Code Section 1031 (f) mandates that all peace officers in California “[b]e found to be free from any physical, emotional or mental condition which might adversely affect the exercise of the powers of a peace officer.”

It is not the intention of this policy to interfere with a supervisor’s ability to recommend or suggest personal counseling to a subordinate, nor is this policy intended to alter or replace confidential counseling provided by the department as a result of critical incidents.  Rather, this policy is intended to provide a mechanism for the assessment of an employee’s mental and emotional ability to perform essential functions of their position when the employee’s conduct, behavior and circumstances indicate to a reasonable person that continued service by the employee may be a threat to public safety, the safety of other employees, the safety of the particular employee, or, may interfere with the City’s ability to deliver effective police services.   

PROCEDURES  

Criteria.  To assist in determining the continuing emotional and mental fitness of (Department) officers to carry out their essential duties as armed peace officers, and other employees whose duties affect the public safety, all supervisory employees should be alert to any indication that an employee may not be emotionally or mentally fit.   Such indications may include but are not limited to the following factors.  The mere presence of any one factor or combination of factors may not be sufficient to order the evaluation.  However, such presence should not be ignored and may lead to the ordering of an evaluation.   While there is a great variety and range of acceptable behavior among employee’s, dramatic or sudden  changes in any particular employee’s customary behavior may increase concern. 

·        One or more personnel complaints, whether originated internally or externally, particularly complaints of the use of unnecessary or excessive force, inappropriate verbal conduct, or any conduct indicating an inability to exercise self control and self discipline. 

·        An abrupt and negative change in customary behavior, toward an inability to perform essential functions of the position.  

·        Irrational verbal conduct or behaviors, including delusions and hallucinations. 

·        Suicidal statements or behaviors, or personal expressions of mental instability 

·        Unexplained and excessive tiredness or hyperactivity. 

·        Dramatic change in eating patterns resulting in sudden weight loss or gain, or diagnosis of a life threatening eating disorder. 

·        Change in behavior pattern to inattention to personal hygiene and health.   

·        Inappropriate use of alcohol, medications or other drugs, including symptoms of illegal drug use. 

·        Memory losses. 

·        Impatience or impulsiveness, especially with a loss of temper.  

·        A pattern of conduct indicating a possible inability or decrease in ability to defuse tense situations, a tendency to escalate such situations or create confrontations.  

·        Unexplained and inappropriate excessive lateness or absenteeism. 

·        Any other factor or combinations of factors that causes a supervisor to reasonably suspect that a fitness for duty evaluation may be necessary.  

Reporting.  Any supervisor observing circumstances indicating that the emotional or mental fitness of an employee may be in question should meet with the employee, if to do so will not aggravate the situation.  If the meeting does not relieve the supervisor’s concerns, or no meeting is conducted, the involved supervisor shall contact his or her division commander and prepare a written report of the circumstances if so directed. The Division Commander or designee shall advise the Chief of Police of the circumstances. 

 An employee is not required to disclose a disability to a supervisor, however, a supervisor may inquire regarding the conduct, behavior or circumstances that give rise to his or her concerns.  Where appropriate, a supervisor and employee may also discuss reasonable accommodations that may enable the employee to perform the essential functions of his or her position.  

Relief from Duty. In aggravated circumstances, such as when an employee’s conduct immediately or directly threatens safety, a supervisor may immediately relieve the employee of duty pending further evaluation.  In other cases, employees may be relieved from duty or reassigned as necessary for public safety or the efficient operation of the department, pending completion of an evaluation. Any readily accessible or department provided weapons or other department property may be seized by the supervisor and where appropriate, the employee ordered not to exercise peace officer or other official powers.  Nothing in this policy is intended to prevent or limit a supervisor from taking any emergency action reasonably necessary to protect life or property.  

Order for the Evaluation. The Chief or his designee may determine, in the exercise of his or her discretion and with or without additional investigation, that a fitness for duty evaluation is or is not warranted.   If an examination is warranted, it should be scheduled for the earliest opportunity.

 The employee should receive a written order for the evaluation. Such order should include a brief description of the reasons for the evaluation.  It should also specify the date, time and place of the evaluation; the name of the psychologist conducting the evaluation; a directive to cooperate with the psychologist’s and/or staff requests, and completely and honestly answer any questions posed by the psychologist or staff; and notice that the evaluation is being conducted for use by the department. The notice shall also state that the evaluation is confidential between the employee and the evaluator to the extent required by the Confidentiality of Medical Information Act (Civil Code Section 56 et.seq), which allows the evaluator to release limited information to the department as specified below. 

Requirements for the Evaluator. The evaluator will be designated by the department and must meet the requirements of 1031 (f) of the Government Code, which requires the mental and emotional condition of officers “shall be evaluated by a licensed physician and surgeon or a licensed psychologist with a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of mental disorders.”  The evaluator shall be instructed by the department to only release that information as allowed under this policy or as otherwise required by law.   

Limited Scope of Report. The department has a right to information that is necessary to achieve a legitimate purpose. The evaluation is ordered by and conducted for the department.  It is not for the purpose of treatment but to determine fitness for duty.  The limited verbal and/or written results of the evaluation will be provided to the Department as a confidential personnel record. The report and information received by the department shall be limited to: 

·        a conclusion regarding the determination of fitness for duty, 

·        a description of the functional limitations of the employee, 

·        whether the condition that leads to the functional limitations is industrial or non-industrial in nature, 

·        other information to the extent authorized by law, necessary to achieve the legitimate purpose of the employer. 

·        no statement of medical cause shall be included.  

Exception:  Where the employee has initiated a law suit, arbitration, grievance, worker’s compensation or other claim or challenge involving his or her medical history, mental or physical condition, or treatment, the report may contain information which is relevant to that action. 

An employee may waive in writing any or all restrictions on the information reported to the employer.   

Disposition of Report. The department shall establish appropriate procedures to protect the information from unauthorized use or disclosure.  The report will be placed in a sealed envelope and retained in the employee’s separate secure medical file in the ________________.  The report may only be used or disclosed in a legitimate and appropriate proceeding to the extent authorized or compelled by law or agreement. 

 Refusal to Cooperate.  Refusal to comply with the order or any of its parts, or with reasonable requests by the evaluator shall be deemed insubordination, and shall be grounds for disciplinary action, up to and including termination.  Statements made to the evaluator shall be considered compelled and may not be used in a criminal or civil proceeding against the employee.  

Disposition.  Depending upon the results of the evaluation and the recommendation of the evaluator, the Department may:

·        return the employee to full duty, 

·        place the employee on temporary light or modified duty, 

·        remove the employee from any duties pending treatment and re-evaluation, 

·        conditionally allow full or modified duty on receipt of treatment, 

·        institute or resume disciplinary proceedings as appropriate,

·        institute proceedings to medically terminate employment, or when appropriate, offer an alternative position, for which the employee may be qualified.   

Where possible, it is always the department’s intent to rehabilitate an employee and achieve a return to full duty status. 

SAMPLE  ORDER LETTER – Fitness for Duty Evaluation

CITY OF ( )

POLICE DEPARTMENT

(date)

TO:             (Name of Employee)

FROM:                Chief ( )

SUBJECT:      Notice of Psychological Fitness for Duty Evaluation

This memorandum will serve as a written order directing you to submit to a psychological Fitness for Duty Evaluation.

The reason(s) for the evaluation are:

(Summarize the behavior, circumstances, etc. and refer to any of the appropriate factors that are listed under the Procedures section of this General Order)

The evaluation is scheduled for (day, date, and time) and will be held in the office of Dr. (NAME).  The address is ().

You are directed to cooperate with the psychologist’s and/or staff requests and completely and honestly answer any questions posed by them.  The evaluation is being conducted for use by the Department, however, the evaluation is confidential between the employee and the evaluator to the extent required by the Confidentiality of Medical Information Act (Civil Code Section 56 et.seq), which allows the evaluator to release limited information to the Department. You may authorize the evaluator to release additional information to the department. 

Refusal to comply with this order or any of its parts, or with the reasonable requests of the evaluator, shall be deemed insubordination, and shall be grounds for disciplinary action, up to and including termination.  Statements made to the evaluator shall be considered compelled and may not be used in a criminal or civil proceeding against the employee.

CHIEF OF POLICE (OR DESIGNATE)