Police
officers with known or suspected psychological or behavioral problems
often present complex issues for administrators. For example, an
officer who was once a productive and respected member of a department
now shows a distinct change in behavior or attitude that is confusing,
frightening, or irritating to his or her supervisors and coworkers.
Such an officer can have a profound effect on public safety as well
as organizational effectiveness, productivity, and morale. Once
a problem officer has been identified, a public safety department
must exercise due diligence in order to protect itself from liability
for the officer’s actions, as well as to protect the officer,
the public and other officers from potential harm. In addition,
the department often has deep personal concern for the officer and
wants to save his or her career if at all possible.
When a police officer or other public safety employee has a personal,
psychological, or behavioral problem that is affecting the workplace,
it can raise difficult questions such as: Can the employee work
safely under routine conditions? Can he or her work safely in critical
situations or under high levels of stress? Do I, as an administrator,
have the right to order an employee to take a psychological exam?
If I discipline the employee for poor performance or conflicts with
other workers, is that a violation of the Americans with Disabilities
Act (ADA)? Should I refer him or her for counseling?
While there is often a clear connection between psychological problems
and workplace functioning, dealing with these issues requires a
clear understanding of the problems involved, what workplace behaviors
are affected, what workplace modifications may be available, and
what mental health interventions would be appropriate (Fischler,
2000; Fischler & Booth, 1999). A psychological fitness-for-duty
(FFD) examination can help a public safety administrator by providing
information that will help to clarify these issues and answer questions
arising from them.
Common Behavioral Red Flags Leading
to FFD Referrals
Most concerns leading to FFD exams are generated
from observed workplace behaviors, though they may arise from
information obtained about a person from outside sources as well.
Stone (1995) found that excessive force issues accounted for 19%
of police FFD referrals. These can include a pattern of citizen
complaints or one especially egregious complaint. Allen, Hibner,
& Miller (2000) found that about 29% of FFD cases were classified
at resulting from “workplace violence,” which could
mean violence against citizens, violence against coworkers, or
violence against the officer in question. Obviously, prediction
and prevention of future violence can be a major reason to conduct
an FFD exam.
Generally, a marked negative change in an officer’s
demeanor or job performance may signal the need for an FFD. Such
changes may include a pattern of interpersonal conflicts with
coworkers or supervisors, insubordination, excessive use of sick
leave, being on duty while intoxicated or hung-over, a pattern
of poor judgment, sexual inappropriateness, bizarre or threatening
behavior, or a high rate of errors. These workplace behaviors
do not necessarily indicate that the officer has a psychological
problem, but they may provide probable cause to investigate further
through an FFD exam. Sometimes, an officer will confide to a coworker
or supervisor that he or she is having a personal problem that
is affecting his or her ability to work and feels the need for
help. For example, employees may recognize that they are having
family or alcohol problems that are making them more irritable,
depressed, or anxious, leading to more conflicts or errors at
work. Sometimes an officer will describe symptoms of posttraumatic
stress disorder (PTSD), which are affecting his or her willingness
to go to certain types of calls or engage in high-risk situations.
Often, the underlying psychological correlates
of a workplace problem are unclear to an administrator. It is
a good policy to discuss the situation with the department’s
consulting psychologist (or other police psychologist) to determine
if there is sufficient reason to suspect an underlying psychological
problem before formally ordering the exam. This is most useful
if the psychologist has the opportunity review the employee’s
personnel file, or at least obtain a summary of his or her past
job performance. Obviously, not all substandard performance issues
are the results of psychological problems. For example, poor morale,
low motivation, or an inadequate level of skill may be at the
root of problematic behavior. Often supervisory coaching or discipline
would be a more appropriate intervention than a FFD exam. Sometimes
a person is just not cut out for law enforcement and should not
have been hired in the first place.
Other administrative concerns may be generated
from reports of problems outside of the workplace. Such a situation
can raise a number of issues related to personal privacy and appropriate
work-life boundaries. Police departments are advantaged over their
civilian counterparts by their ability to do internal investigations
of alleged problems that occur outside of work. However, a great
deal of discretion by the administrator is necessary so that every
unsavory rumor about an employee does not come under public scrutiny.
Once the investigation or an admission by the
officer has indicated that the there is indeed a problem, the
administrator must decide if the problem warrants discipline (e.g.
conduct unbecoming an officer) and/or an FFD exam. Especially
egregious behavior clearly calls for an FFD exam before the officer
returns to work even if there have been no previous problems with
work performance. Such behavior might include suicidal or homicidal
threats, extremely inappropriate use of force, inappropriate use
of alcohol (for example, being arrested for DWI while off-duty),
any illegal drug use, or domestic abuse. Self-reported symptoms
of anxiety or depression such as insomnia, loss of appetite, confusion,
increased irritability, fatigue, nightmares, or loss of interest
or initiative, when of sufficient intensity, may also be red flags
which would warrant an FFD exam, even in the absence of work-related
performance problems. The goal here is to prevent a problem that
can be foreseen or should have been foreseen.
Definition and Goals
An FFD exam initially seeks to answer two questions.
First, does an employee have a psychological problem; and second,
can he or she perform his or her job in a safe and effective manner?
Both conditions must exist for an employee to be found unfit for
duty. That is, if an employee has a psychological problem but
no work problems (or clear potential for work problems) then he
or she may be referred to mental health treatment, but could continue
to work without restriction. In this case, the employee would
not be compelled to such treatment and it would be at his or her
discretion. Conversely, if there are work related problems, but
no psychological problems, the issues should be handled through
remedial or disciplinary channels.
An FFD exam, by definition, is performed only
on incumbent personnel, and is therefore distinctly different
from a pre-employment psychological exam (e.g. Fischler, 1997;
Fischler, 2001; Hibler & Kurke, 1995; International Association
of Chiefs of Police Psychological Services Section, 1998a, 1998b).
In addition, while pre-employment exams may be used to screen
for undesirable personality characteristics or other psychological
issues that might negatively affect job performance, an FFD exam
is generally narrower in scope and seeks to discover whether or
not a psychological problem or symptoms of a psychological disorder
as described by the Diagnostic and Statistical Manual of Mental
Disorders, 4th Edition (DSM-IV; American Psychiatric Association,
1994), are responsible for the employee’s work problems
or potential problems. Finding that an officer’s current
problems are related to “stress,” for example, is
probably insufficient to conclude that he or she is unfit for
duty. If there are no true psychological problems, the employee
should generally be handled through disciplinary channels.
While FFD exams are probably more common in public
safety occupations than they are in lower risk occupations, due
to the potentially dire consequences of having unfit officers
on duty, any employee can be referred for an exam. However, the
practice is not limited to public safety departments and can be
performed in any occupational group (e.g. Fischler, 2000). In
public safety departments, unsworn employees, such as dispatchers,
transcribers, and community service officers, for example, may
be referred if there is reason to believe that the employee cannot
perform his or her job in a safe or effective manner due to a
mental health problem.
The FFD exam itself is not disciplinary in nature,
although it may be seen that way by employees who are being compelled
to complete the exam. In addition to being compelled to be examined,
there may be disciplinary consequences for whatever issue precipitated
the exam, and potentially, for refusal to cooperate with the exam.
In some cases, where the behavior in question is not egregious,
or where the extent of the suspected mental health disorder is
not severe, the FFD exam can be used as an alternative, or diversion,
to discipline. For example, an officer with an otherwise good
work history pulls his gun and threatens a suspect inappropriately.
The chief might send the officer for additional use-of-force training,
or choose to discipline the officer, perhaps with a reprimand
or suspension. Alternatively, if the chief believes that the officer
has been under excessive stress lately such as marital problems,
or has seemed otherwise irritable or out of sorts, he or she can
offer to send the officer for an FFD exam instead of evoking the
discipline, as long as the officer agrees to abide by the results
of the exam. In such a case, the chief recognizes that there may
be other problems underlying the recent behavior, which, if addressed
and corrected, would help the officer in the long run more than
a disciplinary consequence, would. Such a diversion would be inappropriate
where there are clear underlying psychological issues that raise
serious doubts about the ongoing safety of the officer or others,
or where the seriousness of the offending behavior compels discipline.
In those cases a chief may not have the discretion to forego either
the exam or the discipline.
Possible Outcomes
There are a number of possible outcomes to an
FFD exam. An illustration of the decision tree used in the FFD
exam process, including potential outcomes, can be found in figure
1. In one scenario, the examiner may conclude that the employee
does not have a significant psychological problem. In this case,
he or she is psychologically fit for duty and should be referred
back to the appropriate departmental administrator to determine
the need for remediation, training, coaching, or disciplinary
consequences. It is important to realize, however, that such an
employee may still have personal problems, such as family concerns
or being spread too thin by too many commitments. The examiner
may recommend help such as family counseling or advise the employee
to cut back on other activities, but the ultimate decision to
follow this advice rests with the employee.
It is also not uncommon for some officers to have mild to moderate
level personality characteristics which, while negatively affecting
work performance, are not of such severity as to be classified as
personality disorders, and therefore, probably would not render
the individual unfit for duty. Examples of such characteristics
might include shyness or unassertiveness, rigidity, self-centeredness,
authoritarianism, or indecisiveness. Since personality problems
generally begin early in adulthood; under ideal circumstances, they
should be identified at the pre-employment psychological examination.
If they were not, the employee may have mild, but chronic, adjustment
problems at work. The remediation/disciplinary path is the most
appropriate for this individual. Psychotherapy may also be helpful
and might be recommended by the FFD examiner. The officer may not
agree to follow this advice, but eventually would probably face
significant disciplinary problems if his or her performance does
not improve.
If the examiner determines that a psychological
problem or disorder is present, it will probably fall into one
of three broad categories – clinical syndromes, personality
disorders, or cognitive disorders. Clinical syndromes include
anxiety disorders, depressive disorders, PTSD, and substance abuse/dependency.
Symptoms such as sleep or appetite disturbance, concentration
problems, fatigue and lethargy, low self-esteem, and avoidance
of stressful situations are often involved with these disorders.
Rarely, an officer may have a psychotic disorder with symptoms
such as paranoia, delusions, or hallucinations. Clinical syndromes
often have a favorable prognosis with the right type of treatment,
which typically includes some combination of medication and psychotherapy.
A variety of stressors, both work and non-work related, can bring
on clinical syndromes. Often the affected individual has a biologically
or genetically based predisposition for the problem, which, when
combined with situational stressors, result in significant mental
health symptoms.
Personality disorders are defined as maladaptive
ways of perceiving the world, relating to others, and controlling
impulses. They are chronic, pervasive, and ultimately self-defeating.
Individuals with personality disorders often believe that there
is nothing wrong with them, or if there is, it is someone else’s
fault. Depending on the specific disorder, affected individuals
can show a wide variety of problems, including dishonesty, poor
judgment due to inability to control impulses, manipulativeness
in relationships, suspiciousness or hostility towards others,
having too much or too little concern over details, failing to
take independent action when appropriate, and showing too much
or too little concern over what other people think. Long-term
psychotherapy can occasionally be helpful for people with personality
disorders, but the prognosis for change is usually guarded. Since
personality disorders begin in adolescence or early adulthood,
they may be identified in the pre-employment screening exam. However,
sometimes symptoms of a personality disorder can lie in a dormant
state until a set of events (e.g., conflict with a supervisor,
breakup of a relationship) triggers their emergence.
Cognitive disorders involve deficits in memory,
general intelligence, problem solving, and reasoning. They are
often related to acquired neurological damage due to a number
of possible causes such as stroke, head injury, chronic alcoholism,
brain tumor, early onset dementia (such as Alzheimer’s),
or other medical etiologies. Occasionally, an individual can recover
from the acute effects of head injury or stroke through time and
cognitive rehabilitation. More typically, however, once someone
has been diagnosed with an acquired cognitive disorder, he or
she would rarely be able to recover sufficiently to work as a
public safety officer again.
Milder cognitive disorders can include learning
disabilities and attention-deficit disorders. Depending on the
severity, individuals with these disorders can sometimes work
in the public safety field. Since these disorders have an onset
in early childhood, they would usually be identified during the
preemployment exam. However, sometimes the full impact of one
of these disorders on job performance is not recognized until
the employee is actually working at his or her assigned duties
over an extended period of time.
Having determined that a psychological problem
exists, the examiner then explores whether or not it is likely
to interfere with the employee’s ability to perform his
or her job safely and effectively. Some serious disorders, such
as major depression with suicidal ideation, severe PTSD with frequent
flashbacks or unwanted recollections of the traumatic event, active
alcohol dependence, certain personality disorders such as antisocial
or paranoid types, and most cognitive disorders, would generally
not allow safe and effective performance of law enforcement duties,
and the officer should continue to be on leave until he or she
recovers sufficiently to return to work or decides to pursue other
options such as disability leave, disability retirement, or resignation.
Medical leave may be continued for as long as departmental policy
permits. If and when the employee believes that he or she has
recovered sufficiently to return to work and his or her treating
doctor or therapist is in agreement with this, then he or she
should be referred for a second FFD exam with the original departmental
examiner or other independent examiner. Since significant role
conflicts and potential conflicts of interest often occur when
the FFD examiner is also the treating doctor or therapist (Fischler,
2000; Greenberg & Shuman, 1997), the treating clinician should
generally not make the final FFD decision, and therefore, a second
FFD exam with the departmental or other independent examiner becomes
necessary.
Sometimes the question arises at to whether it
is possible to send a dysfunctional employee back to work with
restrictions or “reasonable accommodations” under
ADA. In our experience, it is rare that a seriously emotionally
disturbed or personality disordered police officer can fulfill
the “essential functions” of the job with or without
accommodations or fulfill the “business necessity”
of the organization. Furthermore, there are no known accommodations
that would allow such an individual to fulfill certain job duties
such as carrying a gun, making split-second decisions in critical
situations, or placing him or herself or others in potentially
dangerous situations. If the officer is only mildly disturbed,
modifications such as time off for doctor appointments, flexible
scheduling, or changes in supervisory methods may assist him or
her to make a satisfactory return to work. More radical accommodations,
such as reassigning job duties or providing closer supervision
may be achievable with personnel other than sworn officers, because
the public safety issues are not as direct. Sometimes an officer
is placed on “light duty” which is often clerical
and non law-enforcement in nature. While perhaps beneficial for
the officer, such a placement is probably not required under ADA
because the employee is not able to function in his or her own
job with or without reasonable accommodations. However, specific
guidance on these issues should be obtained by the department’s
legal advisor.
If the psychological problem is mild and the prognosis
is favorable, the potential work problems are likely to be less
pernicious. For example, if the employee has a mild depression
or anxiety disorder, he or she may somewhat unproductive, occasionally
irritable with coworkers or the public, or show sporadic instances
of questionable judgment. Life-threatening consequences in this
case are unlikely. Therefore, he or she may be found provisionally
fit for duty and continue to work contingent upon entering and
completing appropriate mental health treatment. In this case either
the FFD examiner or the department should follow up to verify
that the employee is taking the steps recommended by the examiner.
It is also possible that, although the employee
has a psychological problem, it is not of sufficient severity
to cause significant work-related problems. This might be the
case with an acute adjustment disorder in response to the breakup
of a relationship or the loss of a parent. In such cases the employee
may be somewhat depressed, anxious, worried, or tired, but the
condition is not of sufficient severity to significantly affect
work performance. The examiner may then decide that no additional
treatment is necessary and the employee may unconditionally return
to work, or he or she may decide that additional treatment would
be clinically useful, but not mandatory for the employee to return
to work.
FFD Exams: Recommended Practices
As Benner (1997) describes, there is no one universally
accepted method or set of criteria for conducting an FFD exam.
However, the IACP Police Psychological Service Section (1998a)
guidelines, as well as descriptions of practice in a number of
contexts (e.g. Allen et al., 2000; Benner, 1997; Fischler, 2000;
Hibler & Kurke, 1995; Stone, 1995), provide a general consensus
that seems to have developed around the standard of practice.
A fair and comprehensive examination should generally have the
following elements: 1) a review of available collateral information;
2) psychological testing; and 3) an in-depth interview. In addition,
examiners should have specialized knowledge of public safety assessment
techniques.
Collateral information may include personnel records,
medical records, internal investigation reports, and family interviews.
To the extent possible, records should be reviewed prior to the
examination. While an objection may sometimes be raised that having
access to these records could bias the examiner, these concerns
are generally outweighed by the value of such information with
regard to being able to appropriately focus the exam, and raising
and resolving inconsistencies that may exist between the records
and the employee’s self-report. A general rule of thumb
is that the more complete the information to which the examiner
has access, the more accurate will be the findings.
Personnel records may include documentation of
critical incidents, memos from supervisors or coworkers regarding
their observations or problems they have experienced with the
employee in question, and a history of the employee’s performance
record. Personnel records can usually be obtained prior to the
examination. Within the current context, the medical records of
primary interest would be those related to mental health evaluation
or treatment. They can come from psychologists, psychotherapists,
psychiatrists, or other medical doctors who are involved in the
employee’s mental health treatment. If there are psychological
adjustment issues related to a physical injury or condition, then
medical records related to those may also be reviewed. Medical
records must usually be obtained with the written consent of the
examination subject. It is generally preferable for the examiner
to obtain medical records directly from the medical provider,
thereby insulating the employee from an additional violation of
privacy that would occur if the employer would have direct access
to those records. Finally, interviews with family members or other
concerned parties may be helpful to assess the employee’s
ability to function in non-work related contexts, and to get a
better understanding of the history of the employee’s problems
or issues. Such interviews should be performed with the employee’s
permission, after the examiner has had an opportunity to interview
the employee.
Psychological testing is the second major component
of the FFD exam. Testing is critical to the process in order to
lend objectivity, comprehensiveness, and defensibility to the
process. This usually includes objective personality tests such
as the Minnesota Multiphasic Personality Inventory – Second
Edition (MMPI-2; Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer,
1989), the Millon Multiaxial Clinical Inventory – Third
Edition (MCMI-III; Millon, 1994), and the California Personality
Inventory (CPI; Gough, 1996). Some psychologists may also use
the Rorschach Inkblot Test (Exner, 1993). Cognitive tests, such
as the Shipley Institute of Living Scale (Zachary, 1986) can be
used to screen for intellectual or memory problems. If abnormalities
are discovered or if there are other reasons to think that the
employee may be suffering from cognitive problems, more comprehensive
tests, such as the Wechsler Adult Intelligence Scale – Third
Edition (WAIS-III, Wechsler, 1997a), the Wechsler Memory Scale-
Third Edition (WMS-III; Wechsler, 1997b), or other specialized
neuropsychological tests may also be useful.
Finally, the in-depth personal interview gives
the employee an opportunity to describe the problems from his
or her perspective, and allows the examiner to obtain a psychosocial
history and conduct a current mental status examination. The examiner
has the opportunity to try to reconcile differences between what
the employee may describe, and the information that has already
been provided by the department. The psychosocial history should
include information related to education, employment history,
mental health treatment, substance use, legal problems, physical
health concerns, and family history (including family or origin
as well as current family or significant other constellation).
Some interview questions may be related to ethnic and gender bias,
if this is an area of concern. The mental status examination evaluates
the presence of psychiatric symptoms through direct observation
(e.g., the employee is very tearful, lethargic, disorganized,
etc.), as well as self-report (e.g., sleep or appetite disturbance,
concentration problems, paranoid thoughts, etc.).
At the beginning of the examination, it is important
that the examiner demonstrate an attitude of objectivity, compassion,
and fairness. Statements that the examination is being performed
to determine what problems might exist, that the examiner is an
objective third party, and that the goal of the exam is to provide
recommendations as to what is likely to be in the best interests
of both the employee and the department, are usually very helpful
to ease the employee’s initial anxiety and defensiveness.
At the conclusion of the interview it is often helpful to discuss
the conclusions and recommendations directly with the employee.
This allows the opportunity for the examiner to assess the employee’s
level of insight and cooperation, as well as how open to treatment
he or she is. It also allows the employee to ask questions about
the treatment process, treatment options, likely prognosis, and
how successful treatment will be related to eventually returning
to work.
FFD Exam vs. Counseling
Administrators are sometimes unsure whether to
refer an employee to counseling or an FFD exam. Either can be
quite useful, but there are significant differences in the processes,
goals, and outcomes of each. These are summarized in table 1.
| Counseling |
FFD Exam |
| Administrator’s primary concern is about the employee’s
personal adjustment – work problems are absent or mild |
Administrator’s primary concern is how employee’s
problems affect the job – work problems or potential
problems are moderate to severe |
| Cannot be ordered by administrator – can only be suggested
– participation is voluntary |
Administrator generally has authority to order the exam
– participation may be mandatory |
| Employee is primary client - goal is to return employee
to the highest level of emotional health possible |
Department is primary client - goals are to determine the
employee’s psychological problems and ability to work |
| Psychological testing and collateral information are usually
lacking |
Psychological testing and collateral information are critical |
| Written report may not be sent to the department or, if
sent, may be skewed in the employee’s favor |
Written report, with clear and objective recommendations,
goes to the department |
Counseling can be extremely helpful to police officers
and their families (Kates, 1999; Kirschman, 1997), and it may
be very useful to recommend counseling services to employees at
certain times. Often these services are provided by the employee
assistance program (EAP), and can be accessed free of charge.
Recommending counseling is particularly appropriate in situations
where the administrator notices subtle changes in an employee
which he or she believes are being caused by personal problems,
but the effects on the employee’s work performance are minimal
or absent. Unless the work problems are severe or potentially
dangerous, an administrator also has the option of initially recommending
voluntary counseling, seeing if the work problems are resolved,
and subsequently referring the employee for an FFD exam if they
are not. When the work problems are very serious, however, an
FFD exam should be the preferred initial response since the process
is specifically designed to address such problems.
A second difference is that, while the FFD exam
may be mandatory if the administrator’s concerns are serious
enough, it is usually inappropriate for an administrator to require
counseling because that implies that the administrator has diagnosed
the problem, and prescribed a treatment – obviously stepping
into a medical expert role. Counseling may be required subsequent
to the recommendations of an FFD exam; however, since the examiner
has the appropriate expertise to make such a recommendation. If
an administrator suggests counseling or therapy instead of a FFD
exam it should be because he or she is primarily concerned about
the personal adjustment of the employee.
Third, the counselor’s role is very different
from that of an FFD examiner, and the two are usually incompatible
(Greenberg & Shuman, 1997). In counseling or psychotherapy
the employee is the client, and the counselor’s primary
responsibility is to help, treat, or advise in a way that is in
the employee’s best interests, whether or not the recommendations
make sense from an employer’s perspective. To be therapeutic,
the counselor needs to remain relatively uncritical and nonjudgmental
of the client’s self-report and therapeutic goals. However,
the evaluator may be quite critical and judgmental regarding the
validity of the employee’s self-report, as well the appropriateness
of his or her employment goals. For example, a counselor might
try to help the employee return to work as quickly as possible
because the employee believes it would be good for his or her
mental health, even if other objective information would suggest
that doing so could potentially threaten public safety.
This also raises the issue of professional competence
– the therapist and evaluator, by definition, should have
different sets of competencies. A counselor who has limited knowledge
of or experience with psychological assessment techniques for
public safety personnel can be particularly problematic. With
this in mind, the IACP Psychological Services Section (1998a),
recommends that only psychologists or psychiatrists familiar with
law enforcement assessment techniques perform FFD exams. In addition,
since the roles of evaluator and therapist are often incompatible,
a counselor or therapist may find him or herself in an ethical
dilemma if asked to provide an opinion regarding the fitness for
duty of one of his or her clients.
Another difference is the type of information
that is likely to be considered in each setting. In a counseling
setting the source of information is typically little else beyond
the self-report of the employee – the objective reality
of this information may not be as important to the success of
therapy as are the employee’s perceptions of and feelings
about the situation. In an FFD exam, the evaluator strives to
learn the objective reality of the situation to the greatest extent
possible by relying on multiple types and sources of data –
self-report, objective tests, and collateral information. Along
the same lines, the primary goal of therapy is to restore the
client to the highest level of emotional and mental health. In
some situations, this could include the therapist encouraging
the employee to find another less stressful and dangerous line
of work. In others, it might include the therapist encouraging
a return to work, in spite of significant work dysfunction, in
a misguided attempt to improve the employee’s level of self-esteem
and self-confidence.
A final issue relates to the type of information
that is provided to the department by the professional contact.
It is difficult, if not impossible, for a therapist to both furnish
information to a department that a therapy client views as unfavorable
and simultaneously maintain a therapeutic relationship with that
client. In addition, a mental health treatment provider is likely
to be reluctant to release personal and confidential information
obtained during therapy sessions even if it bears directly on
the employee’s job performance. Since a therapist cannot
release a report unless the employee specifically requests that
he or she does so, an employee could potentially object to certain
statements in a report and request that they be deleted or reworded.
Therefore, if part or all of the information from a therapist
is not favorable to the employee, it may not be released to the
department, or only favorable information may be reported. In
an FFD exam, written conclusions and recommendations are based
on objective data as well as the independent judgment of the examiner.
Ideally, the FFD examiner should serve a sort of officiating role,
making recommendations that are balanced, unbiased, and that attempt
to weigh the interests of the employee against those of the department
and the public.
Legal Issues
After an administrator has made a decision that
obtaining an FFD exam for an officer is necessary, it is important
for him or her to know what, if any, limits there may be on his
or her ability to compel the employee to engage in the examination.
In general, the courts have been quite affirming of a public safety
department’s right (and obligation) to refer an employee
for an FFD exam if there is a reasonable cause for concern about
the employee’s ability to function safely or effectively.
Guller (2000) and Rostow, Davis, Levy, and Brecknock (2001) have
provided useful summaries of case law relevant to psychological
services in public safety contexts. A few cases stand out as particularly
instructive to the FFD process. For example, in Bonsignore v.
City of New York,[1]
a police officer shot his wife and then killed himself. His widow
sued the department claiming the department was negligent for
retaining the officer. The court ruled in her favor, opining that
a law enforcement department has to show that it has taken reasonable
precautions to not retain officers who are emotionally disturbed.
Based on another court decision, [2]
it appears that the doctrine of official immunity may not be invoked
to protect a department from claims of negligent retention.
Numerous court cases have affirmed that a public
safety department has a right to order an officer for psychological
exams, including FFD exams (Guller, 2000). For example, in an
Illinois case, Conte v. Harcher,[3]
a police lieutenant allegedly used excessive force and was ordered
to undergo an FFD examination, which he refused. The court concluded
that in order to protect the public interest and the efficiency
of the department, the chief has a right to be fully informed
about an officer’s ability to perform his or her duties,
and therefore, to order fitness testing.
The ADA does not prohibit public safety departments
from requiring an officer to undergo a psychological FFD exam.
Problematic personnel do not need to represent a “direct
threat” under ADA to be appropriate for an FFD exam since
being emotionally stable is considered to be a “business
necessity” for public safety agencies. For example, in Watson
v. Miami Beach,[4]
a police commander observed that an officer showed “unusually
defensive and antagonistic behavior” toward his coworkers
and supervisors, and required that he submit for an FFD exam.
The officer challenged the order under the ADA, arguing that such
an exam constituted a protected inquiry. The court ruled that
under the circumstances an FFD exam is job-related and consistent
with business necessity. In Crocka v. City of Chicago,[5]
the court ruled that it was reasonable to evaluate an officer’s
fitness for duty based on the knowledge that he was depressed
and taking psychotropic medication. In doing so, the court dismissed
the claim that ordering the exam was a violation of ADA. The courts
have also ruled that work-related problems such as “poor
judgment” and “personality conflicts” are not
disabilities under the ADA and are therefore not offered protection
under it.
Once ordered to an FFD exam, most courts have
ruled that a public safety employee must comply with the order.
For example, a Chicago police officer refused to take an FFD exam
after being accused of sexual misconduct. The Appellate court
ruled 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.”[6]
However, in Minnesota, a divided court ruled that an order to
submit to an FFD exam is grievable and subject to arbitration
under Minnesota’s Public Employee Labor Relations Act.[7]
Finally, the courts have been fairly inclusive
with regard to what behaviors provide a reasonable basis on which
to order an FFD exam. They include domestic violence,[8]
excessive absenteeism, tardiness, rapid variations in mood,[9]
making threats of physical harm,[10]
allegations of sexual misconduct,[11]
accusations of excessive force,[12]
and concerns regarding emotional stability after a critical incident
such as a shooting.[13]
However, the use of obscene language between police employees
does not constitute a reason for an FFD exam.[14]
Summary and Conclusions
The psychological FFD exam can be a very useful
tool for public safety administrators who must deal with problematic
personnel. The primary goals of an FFD exam are to determine if
an employee has a psychological problem, and if so, to determine
the extent to which it might affect an employee’s ability
to perform his or her job in a safe and effective manner. It can
be effectively used to reduce the need for discipline, maintain
a well-adjusted and productive workforce, and potentially save
an employee’s career. It can also assist both the employee
and department by providing direction to the best resources available
to treat the employee’s underlying problems, and hopefully
return the employee to work as soon as possible. When a return
to work is not possible the FFD exam report can provide the appropriate
basis to help the department explore other avenues such as medical
leave or disability retirement.
Many red flags may signal the need for an FFD
exam, including a pattern of interpersonal conflicts with coworkers
or supervisors, insubordination, excessive force complaints, threats
of suicide or homicide, domestic abuse, excessive use of sick
leave, being on duty while intoxicated or hung-over, a pattern
of poor judgment, sexual inappropriateness, bizarre or threatening
behavior, or a high rate of errors. The employee may also complain
of depression, anxiety, PTSD symptoms, or alcohol abuse. There
are significant differences in how FFD exams and mental health
treatment services deal with these issues due to the differences
in roles and competencies of therapists and evaluators. In general,
while the welfare of an employee may be adequately served through
mental health treatment, the interests of the department and the
public are best served through the FFD exam process when performed
by a psychologist or psychiatrist familiar with public safety
assessment issues. In performing an exam, the examiner relies
not only on the self-report of the employee, but also on objective
psychological tests and collateral information. This combination
of information sources allows for fairer and more objective conclusions
that are better able to withstand challenges in court or another
venue.
The decision to refer an employee for an exam is
probably best made by the department administrator, with appropriate
collaborative input from the department’s consulting psychologist
and its legal advisor. This decision may be made easier with the
knowledge that the courts have generally been quite affirming
of the use of FFD exams in public safety departments, and that
departments can be held liable for not using them when appropriate
to protect the public’s safety. Administrators seem to have
been given broad discretion in referring an employee for an exam
as long as the reasons for the exam are deemed reasonable.
References
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Benner, A.W. (1997). Determining the need for fitness-for-duty
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Butcher, J.N., Dahlstrom, W.G., Graham, J.R.,
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Minnesota Multiphasic Personality Inventory: MMPI-2. Minneapolis,
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*The
author would like to thank Irving Guller, Ph.D., Philip Trompetter,
Ph.D., and Matthew Guller, J.D. for their comments on an earlier
draft of this paper.
[1] 683 F.2d
635 (2d Cir. 1982)
[2]
Davis v. Hennepin County, 559 N.W.2d. 117 (MN App. 1997)
[3]
365 N.E. 2nd 567 (Ill. App. 1977)
[4]
98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.)
[5]
No. 98-2250, 203 F.3d 507, 2000 U.S. App. Lexis 1649, AD Cases
(BNA) 289 (7th Cir. 2000)
[6]
Hayes v. Police Bd. of Chicago, 1997 Ill. App. Lexis 832 (7th
Cir.).
[7]
Hill v. City of Winona, 454 N.W.2d 659 (Minn. App. 1990)
[8]
Essex County Prosecutor Directive, Essex County, New Jersey
[9]
Werz v. Wilson, 922 S.W.2d 268 (TX. App. 1996)
[10]
Flynn v. Sandahl, 58 F3d 283 (7th Cir. 1995)
[11]
Hayes v. Police Bd. of Chicago, 1997 Ill. App. Lexis 832 (7th
Cir.).
[12]
Conte v. Harcher, 365 N.E. 2nd 567 (Ill. App. 1977)
[13]
City of Boston v. Boston Police Patrolmen’s Assn. 392 N.E.2d.
1202 (Mass. App. 1979)
[14]
Maplewood and Law Enforcement Labor Service, 108 LA (BNA) 572
(Daly, 1996)
Copyright 2001© Gary L. Fischler &
Associates, P.A. All rights reserved
