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Fitness For Duty Examination
Perhaps
one of
the most vulnerable
areas for police officers is to be ordered to a Fitness for Duty
Examination. Until a police union is faced with this career ending action
forced
upon one of their members,
they take little action to prepare. This article,
corresponding links and case law, is written to heighten your awareness
of
the very real threat that this action poses against unsuspecting
officers and unprepared unions.
Because of the nature of police work, there is very little preventative actions that can be taken to advert a Fitness for Duty Examination once ordered. The courts have held that the following behaviors are grounds to order a FFD exam:
* Excessive use of force
* Change in performance
* Conflicts with
supervisors (insubordination)
* Conflicts with coworkers
* Excessive use of sick leave
* Poor work
performance
* Poor judgment
It
is easy to see that this list can
be applied to any police officer at anytime and used to justify
attendance at a Fitness for Duty (FFD) exam, the results of which could
immediately end the officer's career. It
is for this reason
that it is strongly recommended that safeguards be set in place in the
union contracts and that a SOP for reacting to this situation be
implemented within the union with the union attorney's
approval.
The
FFD is
conducted by a police
forensic psychologist who is usually on retainer by the Department and
used for the screening of police applicants. This forensic
testing agency is paid by the Department and they are paid to provide
the Department with the desired results. The Department will
supply the FFD examiner with the contents of the officer's personnel
file, or at least those portions that support the Department's
position. The police officer has no way of knowing what
documents were supplied to the examiner and in many cases is unaware of
the contents of his personnel file. The examiner will
interview the officer's supervisors and/or those officers that the
Department will supply to give examples that question the officer's
ability to perform his duty.
The officer cannot refuse a FFD. The examiner will ask that the officer sign a Release/Authorization to disclose the contents of the test to his Department. The legality of this issue has not been clearly defined as of yet and it is strongly recommended that the officer does not waive his rights and Release the information. Although the officer cannot protect the recommendation or determination from being released to the Department, he can protect the contents of the examination from being Released.
It
has been
recommenced by some attorney's that
the officer and/or his union representative review the Release and
cross out any language that waives the officer's rights to privacy
under the HIPPA act or any other applicable right to include the ADA
(American with Disabilities Act). The officer is urged to
place express language in the contract Authorizing the release of the
results of the test only to his attorney. The
findings and
recommendations from the test are different from the actual results.
The
findings of
the test can be reduced to a sentence, either the officer is or is not
fit for duty. The recommendations are also fairly limited,
either
the officer can be sent for counseling and re-evaluated at a future
date, the officer is not in need of counseling and/or psychological
intervention or the examiner does not feel that the officer can be
remediated. These findings can be placed in a one page letter
to
the Department by the examiner. In most cases this should
satisfy
the Department's insistance on cooperation by the officer, and thereby
protect the officer from having intrusive information released to his
Department. A sample Authorization
is available for review and approval, or modification by the union
attorney.
The union is urged to place language in its contract that will :
1. Have the officer tested by a Forensic Psychologist of the Union's choice, at its expense, within 24 hours of the Department test.
2. Have an agreement in place in the contract whereby the results of the testing, including all information, documents and documented interviews be turned over to the officer's attorney within 24 hours of the completion of the testing, and that said information will not be released to the Department for an additional 48 hours, if at all, to allow time for the officer to have the second testing completed and to review the results with his attorney. The officer will need to agree not to report to duty during this period.
3. The Department's Forensic Psychologist shall supply all the information, including the actual test administered and answers given, to the officer's attorney who will then supply the same information to the Union's Psychologist. The officer will also have the ability to submit his own information to both Psychologists, thereby giving the Department's Psychologist an opportunity to review all the evidence and not just that which supports the Department's position.
What to do if you are ordered to a FFD:
The Fitness for Duty Examination in detail.