By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 17: What Triggers an Employee being Subject to “Fitness for Duty” Process
This article is the 17th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 17th article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
Public safety employees are in occupations that can take a tremendous physical and mental toll. Public safety employers traditionally have ordered employees to submit to fitness for duty examinations when they suspect that the employees are having difficulty performing the job because of injury, illness, or emotional difficulty. In the past, courts and arbitrators have been deferential to the employers’ concern for the welfare of the officers, fellow employees, and the public. The ADA, however, revised many of the past rules.
If an employee can perform the essential functions of the job, the department has no right to request a fitness for duty examination. But if a department has reasonable grounds for believing that an employee cannot perform these essential functions, then it may require the employee to obtain a medical or psychological examination. The examination must be “job related” and “consistent with business necessity.”
In the 25 years since the implementation of the ADA, the case law to date remains sparse concerning the justification and evidence needed for an employer to have a sufficient basis to compel a medical or psychological examination. Certainly, if the employee has demonstrable on-the-job problems for which there is no ready explanation, the employer may require a properly focused medical examination to determine if there is a medical cause for the difficulties.
Yin v. California. In its initial case to address this issue, the Ninth Circuit court indicated some degree of deference to management’s claims of business necessity. In Yin v. California,[1] the court ruled that an employee’s claim — that she had been improperly compelled to submit to a medical examination when there was no demonstrated inability to perform the job — lacked merit. The individual had an attendance record that involved an advanced amount of sick leave usage. There had also been some indications of on-the-job impacts from these illnesses. Under these circumstances, the court reasoned that there was a sufficient business necessity to compel an examination.
Brownfield v. City of Yakima. More recently, in Brownfield v. City of Yakima,[2] the Ninth Circuit explained that the business necessity test is not limited to situations where the employee has demonstrated an inability to do the job. The court ruled that business necessity might also apply to “prophylactic” examinations to determine fitness, “especially when the employer is engaged in dangerous work.”
In Brownfield, an officer periodically would become enraged during interactions with management. After several incidents, one of which involved the officer becoming “consumed” with anger and fear about his community service partner, the department referred him for a fitness exam. A psychologist concluded that the officer was unfit for duty. A later examination by his doctor cleared him for duty, after which the department wanted an additional examination. He refused the additional examination and was terminated for insubordination. The Ninth Circuit then addressed the legality of the fitness examination order.
The City of Yakima argued that it had a business necessity.[3] The Ninth Circuit agreed, concluding that the department did not violate the ADA because it had a reasonable and legitimate reason to doubt the officer’s ability to perform the duties of a police officer.
The court explained that the employer’s right to request an examination was real, but not limitless:
In interpreting the “business necessity” standard in another ADA context, we have cautioned that it “is quite high, and is not to be confused with mere expediency.”
The court explained that an “employee’s behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.”
The court further explained in Brownfield that the justification test must be an “objective” one, applying the “reasonable person” standard. It also held, despite granting employers the right to do “prophylactic” examinations, that the burden of demonstrating “business necessity” fell upon the employer. It explained that especially in the context of law enforcement work, some deference would be extended to the employer’s judgment:
Brownfield attempts to explain away each incident by providing background facts suggesting his reactions were entirely reasonable and by challenging the third-party reports as factually inaccurate, but he does not dispute that he reacted as described or that the third-party reports were made to the YPD. Although a minor argument with a coworker or isolated instances of lost temper would likely fall short of establishing business necessity, Brownfield’s repeated volatile responses are of a different character. Moreover, our consideration of the FFDEs’ [Fitness for Duty Examination] legitimacy is heavily colored by the nature of Brownfield’s employment. Police officers are likely to encounter extremely stressful and dangerous situations during the course of their work. See Watson, 177 F.3d at 935 (“Police departments place armed officers in positions where they can do tremendous harm if they act irrationally.”). When a police department has good reason to doubt an officer’s ability to respond to these situations in an appropriate manner, an FFDE is consistent with the ADA. Reasonable cause to question Brownfield’s ability to serve as a police officer was present here.[4]
Causes triggering a fit for duty examination. There are a number of circumstances under which the employer might have a right to compel a medical examination:
- The employee indicates a disability and requests an accommodation;
- It appears that the employee might have a medical limitation that could interfere with the job;
- There is an unexplained performance deficiency;
- The employer has complied with the EEOC requirements to establish a “periodic physical examination” of the employees — the program must be as established under “federal, state or local law” and be consistent with the ADA.
In the next article in this series we’ll discuss what limitations exist as to the employer’s ability to acquire confidential medical information.
[1] 95 F.3d 864 (9th Cir. 1996).
[2] 612 F.3d 1140 (9th Cir. Wash. 2010).
[3] Brownfield, 612 F.3d 1140.
[4] Id. at 1146-47.
