By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com
Federal and state law enforcement officers often times, as a result of taking leave, or the perception of supervisors are sometimes ordered to take fitness for duty (FFD) examinations. FFD examinations can be related to both physical and/or mental health concerns by a police department and can prompt a thorough review by the department’s physicians.
It is important for police officers and police supervisors to be aware of the risks associated with the FFD exam. It is this very type of examination that can lead to an officer’s long term placement on sick leave, forced retirement and/or potential termination from employment with one’s police department. In other words, it is important to take these examinations seriously.
When facing this type of examination, each police officer and/or supervisor is highly recommended that they obtain legal advice as the FFD process unfolds.
The essence of the FFD examination is that the police department or agency sees some reason or justification for questioning whether or not a law enforcement officer is healthy enough to perform his/her duties. There are usually provisions within a police department’s general orders covering the internal procedures for requiring and taking such a fitness for duty examination. The procedures also vary among different states, in addition to those employed as federal law enforcement officers.
In federal sector law enforcement, for example, there are federal regulations which govern FFD examinations. These rules are contained within the Code of Federal Regulations (CFR) at 5 C.F.R. § 339.301. The CFR contains a series of regulations governing how federal agencies require federal law enforcement officers and other employees to take FFD examinations, how these examinations are paid for, and how the individual federal agency involved must handle the FFD process.
In terms of state and local police agencies, the FFD process varies based on each individual jurisdiction, but there are a number of similarities between the different jurisdictions. For instance, FFD examinations may raise disability discrimination and family medical leave act issues as most jurisdictions bar these types of behaviors by police departments to one degree or another.
STRATEGIES FOR HANDLING FFD EXAMINATIONS
There are a number of strategies for dealing with FFD examinations. In the FFD cases that we handle in our law practice, we always urge law enforcement officers and supervisors to seek legal advice because each individual situation varies based upon the individual facts, laws, regulations and general orders that may apply.
However, the following are some general tips to keep in mind as you begin the FFD process.
Talk to an Attorney: Meet with an attorney about your FFD issues ahead of time (before the examination process begins).
Reasonable or Retaliatory Request: Try to determine whether or not your FFD examination was triggered by a reasonable request or if it is based on other facts (such as retaliation or personality issues). This will be critical to determine the correct approach to be taken by the law enforcement officer’s attorney.
Hire Your Own Medical Professional: Give some consideration to having your own medical professional evaluate you regarding any department concerns which may arise. Keep in mind that if there is no merit to the ordering of an officer’s FFD exam, that they will be referring the officer to their retained doctor, who may not conduct a fair examination. Often times it is important to keep this in mind with respect to FFD issues. Many physicians are on retainer and generally tend to find in favor of their employer on the issues.
Have your Attorney Coordinate with the Department’s Physician: Involve your attorney in the medical examination process. Often times it may be helpful to have your attorney deal with the police department’s physician.
Take Notes of your Meeting with the Department Physician: Following an examination by your FFD physician (if they are paid by the officer’s police department), while your memory is fresh make sure to take notes of what occurred during your visit and what the physician may have told you during the examination.
Seek a Copy of the Department Physician’s Medical Report: Attempt to obtain a copy of the medical findings or report from the physician that examined the officer. Often times many physicians will attempt to either deny sending the officer a copy of his own medical report or claim that they cannot do so. If this gets contentious, I would recommend having counsel on hand to speak with the physician and go over your rights as a patient.
If you Receive a Negative Report from the Department's Physician Quickly Consult your Own Professional to Rebut it: If the officer has not already sought an examination from their own medical provider, as outlined in Paragraph 3, above, and the officer receives a negative report from the police department’s physician, it may require quick action by the officer to get a new medial opinion to refute whatever the department’s physician claims.
In closing, I recommend that any police officer or supervisor facing an unjustified or questionable FFD examination seek legal advice early. Doing so may prevent significant employment problems later on after the process has taken hold.