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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.
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
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