Psychological Fitness for Duty

Dr. Lewis Schlosser

Dr. Lewis Schlosser

• Licensed psychologist in New Jersey and New York• Board Certified in Police and Public Safety Psychology• 2003-2012: Tenured Associate Professor, Seton Hall U.• 2006-2015: Director of Psychological Services, NYC

Department of Correction• 2012-present: Managing Partner, IFP• Conducted over 10,000 law enforcement recruit,

fitness for duty, and promotional evaluations• Member, International Association of Chiefs of Police,

Police Psychological Services Section (IACP-PPSS)• Executive Board Member, IACP-PPSS (2018-2023)• Affiliate Member, NJ State Association of Chiefs of

Police and Bergen County Police Chief’s Association• Member, New Jersey Police Surgeons

The Institute for Forensic PsychologyHeadquarters Office: Bergen County

5 Fir Court, Suite 2Oakland, NJ 07436Office: 201-337-4996Office: 201-749-0556 (New Number During Pandemic)staff@ifp-testing.comwww.ifp-testing.com

Dr. Lewis Schlosser: 646-342-5480; lew@ifp-testing.com

Dr. Krista Dettle: 201-787-6939; krista@ifp-testing.com

Dr. Matt Guller: 201-248-9255; coptest@aol.com

Satellite Offices:

Monmouth County: 4567 US Highway 9, Howell, NJ 07731

New York City: 19 W. 34th Street, PH Floor, New York, NY 10016

IACP Guidelines• Psychological Fitness for Duty Evaluations:

https://www.theiacp.org/sites/default/files/2019-05/Fitness%20for%20Duty%20Evaluation%20Guidelines%202018.pdf

• Other Guidelines Available:

https://www.theiacp.org/working-group/section/psychological-services-section

Not all psych exams are the same

• A Pre-Employment Psychological Evaluation (PEPE) looks at whether a candidate is suitable for the job.

• A Fitness for Duty Evaluation (FFDE) looks for the presence of absence of a psychological condition or impairment that would prevent the officer from performing their duties safely and effectively

What is a FFDE?• A psychological FFDE is a formal,

specialized examination of an incumbent employee that results from (1) objective evidence that the employee may be unable to safely or effectively perform a defined job and (2) a reasonable basis for believing that the cause may be attributable to a psychological condition or impairment.

More about FFDE

• A FFDE is a “medical” examination under the ADA.• Medical: likely to elicit

information about a disability

• The main purpose of a FFDE is to determine whether the employee is able to safely and effectively perform his or her essential job functions.

Changing Perceptions about FFDE

• FFDE is a risk management tool to ensure officers are psychologically fit to perform their duties

• FFDE can save lives and save careers

• FFDE should *not* be used to end careers involuntarily

When to Refer for a FFDE?

• Referring an employee for an FFDE is indicated whenever there is an objective and reasonable basis for believing that the employee, as a result of a psychological condition or impairment, (1) may be unable to perform one or more essential job functions or (2) poses a direct threat to him-, herself, or others.

When to Refer for a FFDE?

• An objective basis is one that is not merely speculative but derives from direct observation, credible third-party report, or other reliable evidence.

• Have you ordered other officers for a FFDE under the same/similar circumstances?

FFDE and Liability

• Failure to order a FFDE when reasonably warranted may expose the Department to civil liability in the event of a future incident

• If a FFDE is not warranted, document why it was not ordered

• Your Police Psychologist can write you a letter supporting the decision not to order the FFDE

Examiner Qualifications• Licensed psychologist or psychiatrist• Competent in the evaluation of law

enforcement personnel• Familiar with the essential job

functions of the employee being evaluated and the FFDE literature, especially that is related to police and public safety psychology

Examiner Qualifications• Familiar with, and act in accordance

with, relevant state and federal statutes and case law, as well as other legal requirements related to employment and personnel practices (e.g., disability, privacy, 3rd party liability)

• Familiar with, and be guided by, other applicable professional guidelines, including, but not limited to, the Specialty Guidelines for Forensic Psychology

Examiner Qualifications• Demonstrates ongoing efforts to

maintain and develop their areas of competence based on his/her education, training, supervised experience, consultation, study, and professional experience; and

• Seeks appropriate consultation, supervision, and/or specialized knowledge to address pertinent issues outside his/her areas of competence that may arise during an FFDE

Examiner Qualifications• When an FFDE is known to be in the

context of litigation, arbitration, or another adjudicative process, the examiner should be prepared by training and experience to qualify as an expert in any related adjudicative proceeding.

• Avoiding conflicts of interest – most important – not performing FFDE with therapy clients

Red Flags• Deterioration in an officer with an

otherwise good history• Excessive and/or patterned sick leave• Known or suspected substance abuse• Known or suspected marital problems• Change in employee productivity• Employee appears depressed, stressed

out, and/or burned out• Accusations of plots or malicious intent• Credible reports by friends, relatives,

and/or colleagues of threats of harm to self or others

When in doubt…• If you are unsure if a FFDE is

warranted, consult with your police psychologist before making the referral

• Consultation with your labor attorney may also be helpful

• NOTE: Do not order a FFDE until any pending criminal charges and/or restraining orders are resolved

No FFDE• If an employee has engaged in a

terminatable offense, do NOTrefer them for a FFDE• Fire them• If they survive the discipline

process and the initial event warrants a FFDE, then refer

Automatic Trigger: DV Incident

• Any Incident of Domestic Violence• Criminal Charges and/or TRO• Seek guidance from your County

Prosecutor or State DAG• Attorney General Guidelines

(https://www.state.nj.us/lps/dcj/agguide/9dv34.pdf)• Psychologist must be given victim’s

telephone number for collateral interview

Making a FFDE Referral• Provide the FFDE examiner with a

description of objective evidence giving rise to concerns about the employee’s fitness for duty.

• Include any specific questions that you want to examiner to address.

• Document basis for referral in writing.

What to give the FFD examiner?• Section 7.4 IACP Guidelines: Provide your

police psychologist with information about the employee’s past and recent performance, conduct, and functioning – including a job description, performance evaluations, previous remediation efforts, commendations, citizen complaints, IA investigations, disciplinary actions, past involvement with shooting incidents, reports of any triggering events, prior psychological evaluations, and other relevant documentation related to the employee’s psychological fitness for duty (also see Colon v. City of Newark)

Ordering a FFDE• Give the subject the FFDE referral

order in writing, advising:• General Reason for Referral• Expect cooperation• Consequences of failure to

appear or cooperate with FFDE• Typically disarm officer and place

on paid administrative leave pending the FFDE

Possible Outcomes• Fit for Duty – no restrictions• Fit for Duty – with restrictions:

• Sign gun in and out• Mandatory counseling• Drug/alcohol testing

• Restrictions made in consultation with the Department

• Fit for Modified/Light Duty• Only if offered by the department• Only for specific period of time• Typically in conjunction with some

treatment recommendation

Possible Outcomes• Unfit for duty with treatment

recommendations:• Specified course of treatment

(e.g., counseling, medication)• Substance abuse treatment• Re-training• Referral for specialized

evaluation (e.g., neurological)• After treatment, re-evaluation

prior to return to duty

Worst Case Scenario• Unfit for duty with little chance for

recovery (“Unfit and Unfixable”)• Reflects poor prognosis• Typically follows a significant

amount of mental health treatment being unsuccessful at restoring the officer to duty

• Further efforts to restore the officer to duty are likely to be ineffective

• Usually leads to voluntary or involuntary disability retirement

Access to the FFDE Report• Report is confidential medical record• Do NOT give report to the subject or anyone

else due to confidentiality, test security issues, and risk of harm to subject officer

• Officer should be given a summary of the final outcome (fit/unfit) and any recommendations

• If a legitimate due process right exists for the officer’s attorney to obtain a copy of the report, a protective order should be obtained

• When therapy is being recommended, the treating therapist should consult with the examining psychologist

FFDE Research• 491 FFDE• Between 2011 and 2014• Firearm carrying positions only• Gender: 90% male and 10% female• Average of about 15 years overall

working in the police and public safety field

• Average of about 14 years of service with the department that referred the subject for evaluation

AgeStatistic Finding

Mean 40

Median 40

Mode 48

Standard Deviation 7.7

Range 24-61

EthnicityEthnicity Total Number (N) Percentage of Sample

White 274 57.1%

Black 52 10.8%

Hispanic 76 15.8%

Asian 2 0.4%

Other 5 1.0%

No Race Indicated 71 14.8%

Position HeldPosition Total Number (N) Percentage

of Sample

Police Officer 389 81%

Sheriff’s Officer 2 0.4%

Detective/Investigator 8 1.7%

State Trooper 81 16.9%

Rank HeldRank Total Number (N) Percentage of Sample

Patrolman 266 55.4%

Corporal 4 0.8%

Detective/Investigator 39 8.1%

Sergeant/Detective Sergeant 80 16.7%

Lieutenant/Captain 25 5.2%

Deputy Chief/Chief 4 0.8%

Other/No Rank 62 12.9%

FFDE: Reasons for ReferralReason Frequency (N) Percent of Sample (%)

Domestic Violence 150 31.3

Identified Psychological Condition(e.g., depression, anxiety, PTSD)

83 17.3

Job Performance Problems 74 15.5

Stress Related 55 11.5

Extended Administrative Leave 35 7.3

Substance Abuse 34 7.0

Off-Duty Conduct 23 4.8

Health/Medical Issue 16 3.3

Abuse of Sick Time 10 2.1

OutcomeRecommendation Total Number (n) Percentage

Fit for duty 283 57.4%

Fit for duty - recommended maintenance counseling (AA, supportive, med monitoring,

etc.)27 5.5%

Not fit for duty, capable of performing light/modified duty 63 12.8%

Not fit for duty with possible recovery requiring leave 90 18.3%

Not fit for duty with little chance of recovery 28 5.7%

Reasons for Unfit/Unfixable Designation

Reason for Unfixable Finding Number Percentage

Chronic PTSD 12 43%

Chronic Substance Abuse 6 21%

Chronic Mood or Anxiety Disorder 4 14%

Thought Disorder 2 7%

Suicide Attempt 2 7%

Personality Disorder 2 7%

Institute for Forensic Psychology Lewis Z. Schlosser, PhD, ABPP 5 Fir Court – Suite 2 19 West 34th Street Matthew E. Guller, JD, PhD, ABPP Oakland, NJ 07436 New York, NY 10001 Krista L. Dettle, PhD Tel: (201) 337-4996 Fax: (201) 337-8378 www.ifp-testing.com ____________________________________________________________________________________________________________________

CASELAW SUMMARIES: PSYCHOLOGICAL FITNESS FOR DUTY

OF POLICE AND PUBLIC SAFETY PERSONNEL By: Matthew Guller, J.D., Ph.D. Copyright 2014, Institute for Forensic Psychology

a. DUTY TO MONITOR PSYCHOLOGICAL FITNESS Departments have a duty to take reasonable precautions in hiring and retaining officers who are not psychologically disturbed. The wife of a police officer was shot by her husband, who then killed himself. The wife sued the City of New York for negligence in allowing her husband to carry a gun. The Court held that, to avoid liability, a Department has to show that it has taken reasonable precautions in hiring and/or retaining officers who are not psychologically disturbed. The wife was awarded $500,000.00 in compensatory and punitive damages. Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982). See also Hild v. Bruner, 496 F.Supp. 93 (D.N.J. 1980) (civil rights action brought against a town for injuries suffered by the victim of an assault by the town's police officers; Court held that jury could reasonably have inferred that the town's failure to conduct some kind of psychological testing of its officers constituted gross negligence); Lewis v Goodie,798 F.Supp. 382 (W.D.La. 1992) (individuals arrested and assaulted by two officers; Police Chief held personally liable for general and punitive damages; Chief found to have failed in his duty to properly supervise and train officers, one aspect of this was the fact that he had not required the two officers to undergo psychological screening). The doctrine of official immunity may not be invoked to protect an agency from claims such as negligent retention. A psychiatric social worker for Hennepin County alleged that a County corrections officer engaged in a pattern of harassment of her. Approximately two years after receiving the first formal complaint from the social worker, and after the third formal complaint by the social worker was filed, the County ordered the corrections officer to undergo a psychological fitness for duty evaluation. The officer subsequently resigned. The social worker sued the County for negligent retention (among other claims), and the County sought legal protection under the doctrine of official immunity. The

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Court held that official immunity may not be invoked to protect an agency from claims such as negligent retention of personnel. Davis v. Hennepin County, 559 N.W.2d 117 (MN App. 1997). See also Hafer v. Melo, 502 U.S. 21, 25 (1991). (A state official may be sued for monetary damages in his or her individual capacity. A section 1983 suit against a state official in his or her individual capacity "imposes individual liability upon a government officer for actions taken under color of state law."); Kirkland v. Morgievich, No. 04-1651, 2005 WL 3465669 (D.N.J. Dec. 19, 2005); Kentucky v.. Graham, 473 U.S. 159, 166 (1985). (To establish personal or individual liability in a section 1983 action, a plaintiff must show "that the official acting under color of state law caused the deprivation of a federal right.") b. RIGHT TO ORDER EVALUATIONS Public safety administrators have a right to order an officer in for fitness for duty evaluations. Courts across the country have consistently upheld mandatory psychological examinations, finding that the potential mental instability of an officer justifies such order so long as it is reasonable. Tingler v. City of Tampa, 400 So.2d 146 (Fla. App. 1981); Brown Co. Sheriff's Dept. v. BCSD Employees Assn., 533 N.W.2d 766 (Wis. 1995); Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995) Kraft v. Police Comsnr. of Boston, 417 Mass. 235, 629 N.E.2d 995 (1994); Redmond v. Overland, 672 F.Supp. 473 (D.Kan. 1987). An Illinois Appellate Court held that a Chief has a right to order fitness-for-duty testing on public policy grounds. A Police Lieutenant had allegedly used excessive force against someone taken into police custody. After the incident, the Chief ordered the Lieutenant to undergo a psychological evaluation, and the Lieutenant refused. The Court held that, in order to protect the public interest and the efficiency of the Department and to keep informed about the officer's ability to perform his or her duties, a Chief has the authority to order fitness testing. Conte v. Harcher, 365 N.E.2d 567 (Ill.App. 1977). In Air Force, 437 Wing and AFGE l-1869, 56 FLRA No. 160 (11/30/00), no unfair labor practice was found in ordering a military safety officer to undergo a psychiatric evaluation after he made threatening remarks regarding a Sergeant. Periodic, regularly scheduled evaluations of all serving officers is upheld. Plainsboro Township had in place a system of psychologically evaluating all officers every three years. The PBA local and individual officers challenged the constitutionality of these evaluations. The Court found "legitimate government interests present and that the aforesaid psychological test program is constitutional so long as procedural due process is provided for and the police officer is protected from unconstitutional violations of privacy." P.B.A. Local 319 v. Township of Plainsboro, Docket No. MID-C-173-98, Order Dated 10/30/98, Judge Jack L. Litner, unpublished. See also New Jersey Transit PBA v. New Jersey Transit, 384 N.J.Super 512 (App.Div. 2006)(Police agency may require annual medical examination and require disclosure

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of medical history, blood and urine testing, etc.; termination may be result of negative fitness determination and privacy interest would not prevent this). c. GENERALLY NO RIGHT TO CHALLENGE AN ORDER FOR EVALUATION In most jurisdictions, failure to submit to a psychological evaluation, when reasonably ordered to do so, amounts to insubordination, justifying discipline or removal. "The fitness-for-duty examination is a useful procedure to determine an employee's competency to perform his duties...[and] failure to submit to such an examination, when there are good reasons for directing an employee to submit to it, is insubordination and can justify discharge." Risner v. U.S. Dept of Transp., Etc., 677 F.2d 36 (8th Cir. 1982); Smith v. United States Air Force, 566 F.2d 957 (5th Cir. 1978) (Substantial grounds existed for termination of an Air Force civil service employee who failed to report for an ordered psychiatric evaluation.); Schwartz v. Hicksville Sch. District, 1196 App.Div. Lexis 12680. [1997 FP 22-3] ( N.Y. Appellate Court sustains a two-year disciplinary suspension of a teacher who refused to undergo psychological testing.) An officer can be fired for refusing to take an ordered psychological examination, even if his refusal is based upon a mistaken belief that the order is unlawful. A Chicago police officer was accused of sexual misconduct, and was ordered to be evaluated. He refused, believing the order to be unlawful. The Appellate Court stated that an "officer does not have the prerogative of actively disobeying an order from a superior while the officer subjectively determines whether the order is lawful...such a practice would thwart the authority and respect which is the foundation of the effective and efficient operation of a police force and destroy the discipline necessary in a paramilitary organization." Haynes v. Police Bd. of Chicago, 1997 Ill.App.Lexis 832 (7th Cir.); Peter Villani v. Passic County Sheriff’s Dep’t, CSV 2787-95, Initial Decision (January 15, 1997), adopted, MSB (February 25, 1997); New Jersey Transit P.B.A. Local 304 v. New Jersey Transit Corp., 384 N.J. Super. 512 (App.Div. 2006) (“…no officer has the right to hide his or her lack of fitness by asserting a privacy interest [and] no officer who is unfit for the position has the right to remain in the position.”); Theis v. City of Sturgeon Bay, 2006 U.S. Dist. Lexis 57955 (2006). In New Jersey, a police officer does not have a right to arbitration regarding an order to submit to a psychological examination and such an order is not considered a disciplinary action. An Elizabeth police officer was ordered to undergo a psychological fitness for duty evaluation. The union sought arbitration on whether the Department had good grounds to order the evaluation. The Court held that the union could not challenge the application of the department's fitness for duty policy, as that would block the employer from determining whether an officer is fit. The Court further held that the ordering of a psychological examination does not constitute a disciplinary action for purposes of

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arbitrability. City of Elizabeth v. Superior Officers Association, 27 NJPER P 32017 (2000); Newark v. Bellezza, 159 N.J. Super. 123, 128 (App.Div. 1978) Minnesota is the rare exception, where a Chief's order to submit to a psychological examination is grievable (and subject to arbitration) as to whether there was a reasonable basis to require the exam. A Winona police officer was suspected of inappropriate contact with three young boys, although State investigators found no evidence to support these suspicions. The Chief ordered the officer to undergo a psychological fitness for duty evaluation. The officer refused the evaluation and asserted a right to grieve the order. A divided Court held that under a specific provision of Minnesota's Public Employee Labor Relations Act, the order of a psychological fitness for duty evaluation is grievable and subject to arbitration. Hill v. City of Winona, 454 N.W.2d 659 (Minn. App. 1990). d. CHALLENGES ON CONSTITUTIONAL AND ADA GROUNDS ARE DENIED First, Fourth and Fourteenth Amendment Constitutional challenges to psychological evaluations are rejected. Psychological evaluations of public safety officers have been challenged on several constitutional grounds, including invasion of privacy, and violations of the First and Fourteenth Amendments (including religious, political, social, familial and sexual rights). A Federal Court held that psychological evaluations conducted for the Jersey City Fire Department did not violate any of the plaintiffs' constitutional rights. It held that there was an intrusion upon constitutional rights; however, this intrusion was justified by the State's compelling need for the psychological evaluations. McKenna v. Fargo, 451 F.Supp. 1355 (D.N.J. 1978), aff'd 601 F.2d 575 (3rd Cir. 1979); Orsay v. Enemoto, unreported (E.D. Cal. 2000); the Sacramento Bee (9/20/2000) (Federal judge rejects a suit by U.S. Marshalls claiming that their ordered fitness for duty exams violated the Fourth Amendment). The ADA does not prohibit agencies from ordering an officer to undergo a psychological fitness for duty evaluation. A police commander observed that a patrol officer had an "unusually defensive and antagonistic behavior" towards his coworkers and supervisors. The officer was ordered to undergo a fitness-for-duty examination, and the officer challenged the order on the grounds that it constituted a prohibited inquiry under the ADA. The 11th Circuit held: In any case where a police department reasonably perceives an officer to be even mildly paranoid, hostile, or oppositional, a fitness for duty examination is job-related and consistent with business necessity. Police departments place armed officers in positions where they can do tremendous harm is they act irrationally. The ADA does not, indeed cannot, require a police department to forgo a fitness for duty examination to wait until a perceived threat becomes real, or questionable behavior results in injuries. There was no evidence that management acted improperly in ordering the FFDE. Watson v. Miami Beach, 98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.).

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e. CONDUCT JUSTIFYING A FITNESS FOR DUTY EVALUATION Reasonable person standard. In determining whether an employer's order for a fitness for duty evaluation is justified, courts will apply a reasonable person standard. Thus, there must be sufficient evidence for a reasonable person to doubt whether an employee is capable of performing the job. Law v. Garden State Tanning, 159 F.Supp. 2d 787 (E.D. Pa. 2001). A reasonable person in this context is a reasonable employer, not a reasonable physician. Jackson v. Lake County, 2003 U.S. Dist. Lexis 16244. Domestic violence. When an officer is involved in a domestic violence charge, even if the charges are dropped, the officer must have their weapons removed and may not return to duty until they are cleared psychologically by a department appointed psychologist. Essex County Prosecutor Directive, Essex County, New Jersey. Excessive absenteeism, tardiness, high use of sick leave and rapid variations in mood. A Chief is justified in ordering an evaluation of a paramedic who had excessive absenteeism, tardiness, high use of sick leave and rapid variations in mood. Wertz v. Wilson, 922 S.W.2d 268 (Tex.App. 1996). Making threatening remarks. No unfair labor practice where military safety officer ordered for a FFD following threatening remarks concerning a Sergeant. Air Force, 437 Wing and AFGE l-1869, 2000 FLRA Lexis 181 (11/30/00); Federal appeals court upheld a warden's order to a corrections officer, that he submit to a psychiatric examination, after he was accused by several coworkers of making threats of physical harm. Flynn v. Sandahl, 58 F.3d 283 (7th Cir 1995). Lawsuit alleging mental injury. An employee of a school who was suing the school for severe emotional distress and sexual harassment can be compelled to undergo medical and psychological examinations. Vinson v. Superior Court, 239 Cal.Rptr. 292 (Cal. 1987). A Federal Judge in Chicago orders a plaintiff, who alleges an ongoing mental injury, to submit to a psychological evaluation. Jansen v. Packaging Corporation, 158 F.R.D. 409 (N.D.Ill. 1994). Accusations of sexual misconduct. Haynes v. Chicago, 1997 Ill.App.Lexis 832 (7th Cir.). Learning that an officer is taking medication, such as Prozac. Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000). Alleged use of excessive force. Conte v. Harcher, 365 N.E.2d 567 (Ill.App. 1977).

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Concerns about stability following shooting incident. Massachusetts Appellate Court upholds right of Police Chief to disarm an officer who was formerly involved in a shooting incident and whose emotional stability the Department had concerns about. City of Boston v. Boston Police Patrolmen's Assn., 392 N.E.2d 1202 (Mass. App. 1979). Signs of depression or panic attacks. An officer who broke into tears at a firearms training session could be sent for an evaluation. Davis-Durnil v. Vil. of Carpentersville, 128 F.Supp.2d (N.D. Ill. 2001). Mildly paranoid, hostile, or oppositional. See above Watson v. Miami Beach, 98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.). Filing numerous unfounded harassment complaints. McKnight v. Monroe County Sheriff’s Dept, 2002 US Dist Lexis 18148, 90 FEP Cases (BNA)35 (S.D. Ind. 2002). Failing to submit medical documentation to substantiate a continuing absence from work. A postal employee failed to return to work after six months of absence and failed to provide the agency with documentation to substantiate his continued absence. Bente v. Potter, Postmaster General, Appeal No. 07A40023, Office of Federal Operations (April 28, 2006). f. CONDUCT NOT JUSTIFYING A FITNESS FOR DUTY EVALUATION Use of obscene language. The use of obscene language by one police officer to another police officer in headquarters (in an area not accessible by the public) did not justify an order that the expressive officer submit to a psychological exam. Maplewood and Law Enforcement Labor Service, 108 LA (BNA) 572 (Daly, 1996). In response to a written grievance that was “somewhat intemperate in tone” regarding a chief’s ordered ban on displaying a politically controversial cartoon. A fire chief issued a “special order” prohibiting the display of a controversial political cartoon in the fire station, which was deemed racially insensitive and likely to exacerbate racial tension within the Department. A captain filed a grievance that this amounted to unjustified official censorship. The City determined the grievance amounted to an act of “insubordination,” the subject was reassigned, and was ordered to undergo a psychological evaluation. The Court noted that the Captain did comply with the order and required his subordinates to comply. Moreover, he made his protest according to the prescribed Departmental procedure, and neither published nor publicized it elsewhere, and did not involve any other firefighters. The Court found no evidence of insubordination and the reassignment and

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ordered fitness for duty evaluation were regarded as punitive and not justified. Watts v. Alfred, 794 F. Supp. 431 (D.D.C. 1992). Whistleblowers. Federal law prevents federal employers from requiring psychological exams of employees who claim to be whistleblowers. H.D. 4311, P.L. 101-12, Title 5, Sec. 1221. However, the person must have blown the whistle to the proper authorities, not to the newspaper. Dennison v. Penna Dept of Corrections, 2003 U.S. Dist. Lexis 9579 (M.D. Penna 2003); and the Third Circuit has held, in Caver v. City of Trenton, 2005 U.S. App. Lexis 18432 (3rd Cir. 2005) that a requirement that an officer undergo a psychiatric evaluation does not constitute an adverse employment action. An employee returning from authorized leave under the FMLA, may not be referred for a return to duty examination if they provide a letter from their health care provider recommending a return to work. Under the Family Medical Leave Act, once an employer returns from an authorized leave with a note from their treating clinician stating that they are fit to return to duty, the agency cannot order a confirming evaluation. 29 U.S. Code Sec. 2614 (a) (4) (FMLA) & Labor Dept.'s regulation 29 CFR Sec 825.310(c). An employee must return the employee to work without delay upon receipt of medical certification. This certification may be "a simple statement of an employee's ability to return to work, and need not contain the specific information about the employee's condition." Albert v. Runyon, 6 F.Supp.2d 57 (D.Mass.1998). An employee may be ordered for an evaluation after returning from authorized leave under the FMLA, if:

a) There is a history of requiring return to duty exams and any bargaining agreement perpetuates past practices. Conroy v. Twp. of Lower Merion, 2001 U.S. Dist. Lexis 11460 (Unpub. E.D. Pa.).

b) There is behavior after the return to duty which raises concerns.

Albert v. Runyon, 6 F.Supp.2d 57 (D.Mass.1998); Underhill v. Willamima, 1999 U.S. Dist. Lexis 9722 (Unpub. D. Ore).

If an employee has been certified for return to duty under the FMLA, and they cannot be examined, an administrator can contact the employee's clinician for clarification. An employer with questions about the scope or adequacy of a medical certification may take advantage of the FMLA provision allowing it to contact the employee's clinician for clarification. Albert v. Runyon, 6 F.Supp.2d 57 (D.Mass.1998). This allows the administrator an opportunity to obtain a specific certification of fitness for full duty from the health care provider. It also affords an opportunity to challenge the certifying professional's credentials, if there is a legitimate concern about them.

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g. DEPARTMENT'S RIGHT TO ORDER COUNSELING Counseling can be lawfully ordered as an alternate to disciplinary sanction. Fitness for duty evaluations often results in a recommendation of mandatory counseling. A Missouri Court held that a Department's order that an officer undergo counseling was lawful, and justified termination for refusal to seek treatment. In this case, the officer was ordered into counseling after discussing in detail his sexual encounters in the presence of two female department employees. The officer was also known to use loud and abusive language with co-workers and profanity while performing police duties. Curtis v. Bd. of Police Commissioners of Kansas City, 841 S.W.2d 259 (Mo.App. 1992). Wisconsin allows administrators to require counseling prior to allowing an officer's return to duty. Brown Co. Sheriff's Dept. v. BCSD Employees Assn., 533 N.W.2d 766 (Wis. 1995). An officer may be terminated if they are not fully cooperative with ordered therapy. Moore v. NOPD, 813 S02d 507 (La.App. 2002). h. CONFIDENTIALITY AND RELEASE OF FFDE RECORDS Under ADA, Psychological Reports must be treated as Confidential Medical Records. The ADA requires that "Information obtained regarding the medical condition or history of the applicant" (including psychological data) must be "collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that (i) supervisors and managers may be informed regarding the necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) [Federal] government officials investigating compliance with this chapter shall be provided with relevant information on request." The results of a preemployment psychological examination may be used solely for purposes of determining "the ability of an applicant to perform job-related functions." Americans with Disabilities Act of 1990, 42 USCA Sec. 12112(d). Federal Court holds that a third party cannot obtain an officer's psychological report, even if subpoenaed in a civil rights suit against the officer and the Department. A citizen filed a federal civil rights suit against a Department and individual officers for "roughing him up," and wrongly accusing him of DUI. In fact, he had a blood-alcohol content of 0.00. In the course of the litigation, the citizen subpoenaed copies of the officers' entire personnel files and internal affairs records. The Federal District Court held that all records were to be released, except the psychological reports. These were viewed as being of such a "highly sensitive and personal nature as to justify a privilege." Mason v. Stock, 869 F.Supp 828 (D.Kan 1994).

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New Jersey Superior Court (trial level) holds a balancing test must apply to determine whether an officer's psychological report must be released in a suit against the officer and the Department. The City of Newark was sued for negligent retention of an officer accused of assaulting a citizen. The plaintiff sought copies of the officer's pre-hire psychological records and a subsequent fitness for duty psychological report. The Court held that these records are ordinarily confidential, but a balancing test must apply where due process rights are clearly at stake. It held that the reports "have clear relevance" to the claim against the City of its "alleged breach of its duty to properly psychologically and psychiatrically evaluate [the officer]." The Court held that the release of the reports were required, since "the existence and nature of the examinations performed on the City's behalf are crucial to the proof of the plaintiff's case" and are "similarly crucial to the City's defenses" in order to "refute plaintiff's allegations of negligence and gross negligence." Valentin v. Bootes et al, 325 N.J.Super 590 (1998). Federal Court holds that the psychological reports of officers are protected by the psychotherapist-patient privilege, and may not be released to other officers who file suit against the agency for discrimination. In Caver, plaintiffs served a subpoena on the City's psychiatrist for the production of the psychological records of one defendant police officer and four non-party police officers. Plaintiffs, who were fellow officers, asserted an interest in these records to support their civil rights claims against the City. The Caver Court relied upon the Supreme Court's decision in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1996), where the Court held that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." The Caver Court noted that, unlike the Valentin Court, the Supreme Court "rejected a balancing of the need for the information against the need for confidentiality as a test for determining whether the privilege applied." The Caver Court also held, alternatively, that the privacy interests of the officers whose psychological records were sought far outweighed the plaintiffs' need for the information: "If police officers know that their psychological records may be disclosed to the public, there exists a likelihood that they would not be completely candid when speaking to a mental health professional. This lack of candor would, in turn, defeat the purpose for psychological evaluations, which is, determining mental fitness for the job." Caver v. City of Trenton, 192 F.R.D. 154 (2000). Individuals given a police psychological evaluation are not entitled to receive a copy of their own reports. In evaluations of public safety officers, the issue of test security and the public interest in effective hiring, promoting, and monitoring officers, outweighs the individual's interest in obtaining results of evaluations. The Illinois Appellate Court acknowledged that information from a psychologist's report and notes would allow a prospective applicant to determine what pattern of responses the psychologist found indicative of fitness for police work. An aspiring police officer, armed with this insight, could attempt to tailor his responses accordingly in future assessments. Roullette v. Department of Central Management,

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141 Ill.App.3d 394, 490 N.E.2d 60 (1986); Schroeder v. City of Detroit, 561 N.W.2d 497 (Mich. App. 1997; and Patton v. Federal Bureau of Investigation, 626 F.Supp. 445 (M.D.Pa.1985), aff'd 782 F.2d 1030 (C.A.3, 1986) (Private interest in disclosure of a psychological evaluation under FOIA was outweighed by public interest in nondisclosure); Standard 9.10 of the American Psychological Association's Ethical Principles requires psychologists to: “take reasonable steps to ensure that explanations of results are given to the individual…unless the relationship precludes provision of an explanation of result (such as in some organizational consulting, pre-employment or security screenings, and forensic evaluations).” [emphasis added] Note: Release of reports must be looked at on a case-by-case basis. There are cases where release is required or recommended. These would include:

1. Where a direct appeal of the results of the evaluation has been filed (not threatened), if there is a right to an appeal. Cremer v. City of Macomb Bd. of Fire and Pol. Com., 260 Ill.App. 3d 765, 632 N.E.2d 1080 (1994);

2. In fitness evaluations of serving officers, where an officer is recommended for a psychological disability, and the release is to the pension board. The officer's written consent for release should be obtained first; and

3. In fitness evaluations of serving officers, where a report recommends counseling, it is appropriate to release the report to a treating therapist only, as a leg-up on therapy, and not directly to the officer. The officer's written consent for release should be obtained first.

4. In fitness evaluations of serving officers, where other adverse action is recommended and there is a due process right to receive the report in order to effectively challenge findings in a legitimate legal forum.

i. COMPELLING RELEASE OF EXAMINEE’S MEDICAL RECORDS An agency can compel an officer to release their medical records for review by a department appointed fitness for duty examiner. The Eighth Circuit affirmed a lower court ruling upholding the termination of a police officer who refused to provide an examining psychologist the opportunity to review her medical records and to discover the root of her stress and anxiety. In the Court’s view, this created a stalemate in which the police department had little choice but to terminate the officer rather than return her to her position. Thomas v. Corwin, 483 F.3d 516 (8th Cir. 2007). See also, Thompson v. City of Arlington,838 F.Supp. 1137 (1993) (City could require a police officer on medical leave for attempted suicide to release her psychiatric records before reinstating her to full duty). New Jersey Supreme Court acknowledged that physicians and psychologists who perform an examination of a current or prospective employee have a contractual client-provider relationship with the employer. There is no "patient" relationship with the person examined. Under ordinary rules of negligence, however, a physician does have a duty to conduct a competent examination

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and to make critical information available to the applicant. In this case, during the course of a preservice medical examination, physicians discovered X-ray anomalies indicating possible cancer, and noted this in their report to the employer, but no one told the applicant until it was too late. Reed v. Bojarski, 166 N.J. 89, 764 A.2d 433 (2001) i. MISCELLANEOUS ISSUES There is no doctor-patient relationship when in an examination of a current or prospective employee. The New Jersey Supreme Court acknowledged that physicians and psychologists who perform an examination of a current or prospective employee have a contractual client-provider relationship with the employer. There is no "patient" relationship with the person examined. Under ordinary rules of negligence, however, a physician does have a duty to conduct a competent examination and to make critical information available to the applicant. In this case, during the course of a preservice medical examination, physicians discovered X-ray anomalies indicating possible cancer, and noted this in their report to the employer, but no one told the applicant until it was too late. Reed v. Bojarski, 166 N.J. 89, 764 A.2d 433 (2001) There is no right to have an attorney or other third party present at a psychological evaluation. In a civil action, the Superior Court in New Jersey held that a defense-requested psychiatric exam could be conducted without the presence of the plaintiff's attorney, court stenographer or recording device. Stoughton v. B.P.O.E, 281 N.J.Super 605 (1995). See also Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543 (S.D.N.Y. 1978); Pedro v. Glenn,8 Ariz.App. 332, 446 P.2d 31 (1968); Edwards v. Superior Court of Santa Clara County,16 Cal.3d 905, 130 Cal.Rptr. 14, 549 P.2d 846 (1976); Vinson v. Superior Court,43 Cal.3d 833, 239 Cal.Rptr. 292, 740 P.2d 404 (1987); Rochen v. Huang,558 A.2d 1108 (Del.Super. 1988).. In a police case, the Massachusetts Supreme Court upheld an order to take a psychological examination for a problem officer. The Court further held that the officer to be evaluated had no right to have an attorney present at the time of the evaluation. Nolan v. Police Commissioner of Boston, 420 N.E. 2d 335 (Mass. 1981). Public safety agency can require, consistent with the ADA, that after 12 months of light duty, officers be able to perform the functions of the job, or apply for retirement. Baltimore implemented a new light duty policy requiring that after 12 months on light duty, police officers needed to be able to make forcible arrests as well as perform the other essential job functions of a police officer, or apply for a disability. The Court held that officers unable to perform the essential job functions of a police officer were not entitled to ADA protection. Allen v. Hamm, 2006 WL 436054 (D. Md. Feb.22, 2006); see also Raspa v. Gloucester County Sheriff’s Office, 924 A.2d 435 (N.J. 2007)(Employer is not required to assign an employee who cannot perform the essential functions of a job to light duty indefinitely; employer may terminate officer after consideration of reasonable accomodations).

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A pension denial on psychological grounds does not affect a department’s right to terminate an officer found unfit. Appeals court affirms the firing of a special agent who suffered from psychological disorders. The fact that, in an unrelated decision, her disability pension application was denied because her condition did not affect her ability to perform her duties, was of no consequence. The termination was based on substantial evidence that she was unable to perform adequately as an investigator and could not be reasonably accommodated by the Justice Dept. Bullock v. INS, #03-3205, 99 Fed. Appx. 890, 2004 U.S. App. Lexis 9030, 15 AD Cases (BNA) 979 (Fed. Cir. 2004). [2004 FP Nov] U.S Supreme Court holds that lying to investigators is good grounds for removing an employee. Federal employees were charged with misconduct. They were also charged with lying to investigators when questioned about the misconduct. The Supreme Court held that lying to investigators constitutes good grounds to remove an employee - "a citizen may decline to answer a Government question, or answer it honestly, but cannot with impunity knowingly and willfully answer it with a falsehood." LaChance v. Erickson, 118 S.Ct. 753 (U.S. 1998). This case would seem to add direct support to any adverse action against a recruit for lying during a background investigation or psychological exam." This case has been interpreted to extend to police agency administered psychological evaluations. See Rostow, C. & Davis, R. (2004). A handbook for psychological fitness-for-duty evaluations in law enforcement. Binghamtgon, NY: Haworth (“This ruling would appear to directly support any adverse action that was taken against either an incumbent officer or a recruit for lying during a background investigation or psychological exam in pre-employment screening and FFDEs [fitness for duty examinations].”) NJ Appellate Division highlights agency’s duty to provide background when referring for a Fitness for Duty examination. A police officer was referred for a fitness evaluation following a domestic violence allegation. Internal affairs provided the examiner with the reason for the referral (domestic violence) and a list of the officer’s sustained disciplinary problems (three relatively minor charges). There was, however, additional, potentially relevant information that was not provided to the examiner because it concerned matters which were either dismissed or not sustained against the officer. For instance, while the domestic violence charges were dismissed (the wife withdrew the charges), in the incident report, the responding officers indicated that the wife had bruises on her face, was crying, and accused her husband of pulling her hair, kicking her, pointing a gun at her and threatening to kill her. Several years earlier, the officer had been accused of assaulting an 18 year old. The 18 year old filed a report, but he later refused to cooperate with the Department’s investigation, so no disciplinary action was taken. In 1994, the same officer was also accused of first-degree sexual assault and kid-knapping, but was, again, subsequently acquitted. In 1995, he was accused by a female motorist of using abusive language and pointing a gun at her. Internal affairs investigated, in every case, but the charges were not sustained. The City of Newark was held liable to a citizen who was later assaulted by the officer. This liability stemmed from the policy of not providing “a full and complete historical record of the disciplinary charges and psychological profiles.” The ruling makes clear that any disciplinary history, even including

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charges which have not been sustained should be made known to the examiner. Colon v. City of Newark et al. (46-2-3774)(NJ App. Div. 2006). Background investigations must be completed prior to referring a candidate for a psychological or medical exam. Court holds that for a conditional offer of employment to be valid, an employer must complete its background investigation first. Failure to do so may be deemed a violation of the ADA. “An employer must have either completed all non-medical components of the application process or be able to demonstrate that it could not reasonably have done so before issuing the offer.” Leonel v. American Airlines (9th US Cir. 2005); Giannetta v. Bloomfield, 2000 WL 890871 (N.J. Adm.)(Any relevant, non-medical information which the appointing authority reasonably could have obtained and analyzed prior to making the conditional offer cannot be utilized to disqualify a person once a conditional job offer has been made.) No defamation for derogatory statements in a psychological report. The Appellate Court in New York rejected a defamation suit brought by a rejected police applicant against IFP. The plaintiff and his wife sued on learning he was not selected for the North Castle (NY) Police Department. He alleged that IFP had sent defamatory statements about him to the Department. The Court held that statements contained in a pre-employment psychological report are protected by a qualified privilege. To overcome this privilege, the plaintiff would have to "make an evidentiary showing" of actual malice, which he clearly failed to do. Bopp v. Institute for Forensic Psychology, 6432 N.Y.S.2d 89 (A.D. 1996). ADA allows departments to make job offers to pool of applicants larger than number of current vacancies. The ADA allows police departments to make conditional job offers to a pool of applicants that is larger than the number of currently available vacancies. The Department can then re-rank this pool of applicants based upon the results of the medical / psychological exam. The pool of applicants must, however, be in proportion to the number of conceivable openings. The employer should be able to demonstrate that, for legitimate reasons, it must provide a certain number of offers to fill "current or anticipated vacancies." The ADA and Police Hiring Practices, EEOC Advisory to IACP, The Police Chief Magazine, p. 24 (June, 1997). AUTHOR’S NOTE: New Jersey Department of Personnel disputes this right. PA Fire Department may legally require that firefighter applicants take polygraph examinations prior to hire. The Court held that a polygraph test can be viewed as an inappropriate test for determining the suitability of a candidate for a firefighter position. City of Pittsburgh v. Louis Wilson, 2005 Pta Dist. Cnty. Dec. LEXIS 365 (2005). Administrator may be held liable to town where he or she appoints a police candidate who receives a negative psychological evaluation. Illinois permits a complete forfeiture of salary paid to a fiduciary during the time that the fiduciary was breaching his duty to the employer. Here, a police commissioner appointed a police officer candidate at the

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direction of the town president, despite his knowledge of the candidate’s negative psychological examination results. Later, the town sued the police commissioner. The court held that the commissioner had breached his fiduciary duty to the town, requiring forfeiture of all of the salary and benefits the commissioner had received from the town during the time he was breaching his fiduciary duty. Clarence Gross v. Town of Cicero, 2006 U.S. Dist. LEXIS 47285 (2006). Police officer may be terminated for threatening to kill himself. An Arkansas court rejected ADA and FMLA discrimination claims by an officer terminated after calling a friend and telling him to “send the coroner to my house.” The officer was found in his home holding his service revolver to his head. He had claimed that he had no recollection of the suicide threat or of notifying his supervisors of a need for medical leave (which he was on during the incident). Prichard v. City of Bryant, 2006 WL 751296, 2006 U.S.Dist.Lexis 22720 (E.D. Ark. 2006). See also, Spades v. City of Walnut Ridge, 186 F.3d 897 (8th Cir. 1999) (In a very similar case, the court stated: “The city articulated a nondiscriminatory reason for his termination-increased likelihood of liability…Claims of negligent hiring, supervision, and retention loom large in the minds of employers and their lawyers.”) City of Greenwood v. Dowler, 492 N.E.2d 1018 (Ind. App. 1986)(Attempted suicide sufficient grounds to terminate a police officer, but not adequate to warrant termination of other public employees). Galas v. Ward, 564 N.Y.S.2d 117 (A.D. 1990) (Disputed psychiatric testimony can be supported by proven behavior. Officer's suicide threat, when taken with negative psychological evaluation, warranted his severance). Herman v. Cmwlth. Dept. of General Services, 475 A.2d 164 (Pa. Cmwlth. 1984). (Demotion of police officer to unarmed civilian position was proper after suicide attempt; his alleged recovery irrelevant). “Failure to train” claim may be successfully defended based in part upon Department’s having referred officer for fitness for duty evaluation. In a civil rights action against the Camden Police Department, the plaintiff alleged that an officer had used excessive force. The suit included a claim that the Department had failed to properly train this officer. The Federal District Court entered summary judgment in the Department’s favor on the failure to train claims, in part because the officer had previously been referred for a psychological evaluation and the officer was found fit for duty. Peschko v. City of Camden, 2006 WL 1798001 (D.N.J.) Background investigators have absolute immunity from a defamation suit. The Appellate Court in New Jersey rejected a defamation suit brought by a rejected police candidate. The candidate’s background investigation, prepared by the defendant background investigator, contained a number of negative statements regarding the candidate and was the basis for the candidate’s disqualification. The Court held that an absolute immunity applied in this instance. This is the highest level of protection / immunity from defamation (libel/slander) claims, because this investigation was part of an official government investigation. Pollinger v. Loigman, 25 NJSuper 257(App. Div. 1992).