Flynn, William J., & Stampone, Domenick
1
Running head: IMPLEMENTING FITNESS-FOR-DUTY AND PSYCHOLOGICAL
EVALUATIONS POLICY
Implementing Fitness-for-Duty and Psychological Evaluations
Policy: Legal and Practical Considerations for the Police Manager
William J. Flynn and Domenick Stampone
Raritan Valley Community College
Flynn, William J., & Stampone, Domenick
2
Abstract
Psychological assessment and fitness for duty evaluations have become a standard practice
within the law enforcement profession. Criminal justice professionals have finally realized that
they have a legal obligation and a moral responsibility to monitor the mental health of officers
who may be affected by exposure to critical incidents and other duty related stress and trauma.
While the need for this intervention is clear, the administration of a comprehensive policy can
often become entangled in legal and ethical rhetoric. This paper will address the relevant issues
and suggest guidelines for a fair and efficient policy.
Flynn, William J., & Stampone, Domenick
3
Implementing Fitness-for-Duty and Psychological Evaluations
Policy: Legal and Practical Considerations for the Police Manager
Introduction
The task of policing a modern society has presented a number of formidable challenges
that tests an organization’s ability to make the best use of human resources, science and
technology. Perhaps the most important, and arguably the most difficult aspect of this task is
hiring and maintaining a psychologically fit workforce. The nature of the duties of police
officers requires a delicate balance of the use of authority, discretion, compassion and on rare
occasions the use of deadly force. The strain of these responsibilities can often exhaust an
individual’s ego defense mechanisms and coping skills to the point where the officer is
overwhelmed and unable to function. Besides the obvious moral responsibility agencies have to
be concerned about the health of their officers, recent litigation and court rulings have
emphasized that police departments and other criminal justice agencies are not immune from
liability if they fail to take reasonable precautions in hiring and retaining police personnel.
This paper will examine the issues that confront police administrators who must make
decisions concerning under what circumstances a fitness-for-duty evaluation (FFDE) should be
ordered and how to fashion a policy that is ethically and legally sound. Finally, a review and
summary of recent case law will be included.
Definition, purpose and situations that warrant a fitness-for-duty evaluation
Most, if not all, police departments recognize the benefits and necessity to have
applicants undergo psychological screening prior to making a hiring decision. What is not so
clear is when and under what circumstances an agency should require an officer or civilian
Flynn, William J., & Stampone, Domenick
4
employee to submit to a FFDE. Before a decision can be made, it is important to understand
what a FFDE is, what the primary purpose for seeking one is, and what the possible outcomes of
a properly administered FFDE are.
A fitness-for-duty evaluation can best be described as a specialized, psychological
examination of an individual that results from (1) objective evidence that the employee may be
unable to safely or effectively perform a defined job function and (2) a reasonable basis for
believing that the cause may be attributable to psychological factors (International Association of
Chiefs of Police Psychological Services Section, 2004). A FFDE is limited to incumbent
employees and is substantially different in nature and scope from the process used to screen
potential police candidates (Fischler, 2001).
The International Association of Chiefs of Police Psychological Services Section (IACP,
2004) suggests the following three threshold considerations for referring an employee for a
FFDE:
1.
A referral is indicated whenever there is an objective and reasonable basis for
believing that the employee may be unable to safely or effectively perform his or her
duties due to psychological factors. An objective basis is one that is not merely
speculative but derives from direct observation, a credible third-party report, or other
reliable evidence.
2. FFDEs necessarily intrude on the personal privacy of the examinee and therefore
should be conducted after the employer has determined that other options are
inappropriate or inadequate in light of the facts of a particular case. The FFDE is not
to be used as a substitute for disciplinary action.
Flynn, William J., & Stampone, Domenick
5
3. If an employer is uncertain whether its’ observation and concerns warrant an FFDE, it
may be useful to discuss them with the employer’s examiner or legal counsel prior to
mandating the examination.
It is important to note that although the FFDE is clearly not a form of discipline, there
may be disciplinary consequences for failure to submit to the exam, or for not cooperating with
the examiner to the point where a valid examination is not possible. Further complicating the
issue is the possibility that the behavior that brought the subject of an FFDE to light may be a
violation of a departmental regulation or a criminal offense.
Some other important factors to keep in mind are that a FFDE is considered a “medical”
exam under Americans With Disabilities Act (ADA). The client (of the examining professional)
is the agency or organization that ordered the exam. The subject of the examination is neither
the client nor the patient of the examiner.
Police administrators should exercise great care when selecting mental health
professionals to conduct psychological evaluations of police officers. The personality traits of
individuals who have been exposed to the police culture and working environment present
unique challenges during examinations that can best be addressed by experienced clinicians. A
licensed clinical psychologist or psychiatrist with advanced knowledge of the nature of the police
personality would be the ideal choice. The examiner should also be familiar with the duties and
job specifications of police personnel and the legal requirements that may impact the process of
their duties and obligations as an examiner, including matters involving confidentiality of
information. Since many FFDEs eventually lead to litigation, the examiner should be a qualified
expert witness.
Flynn, William J., & Stampone, Domenick
6
The most critical element of a good FFDE policy is to educate supervisory personnel to
be alert for the behaviors that indicate an evaluation may be warranted. It is not possible to
include every warning sign in a written policy; however, there are classic symptoms that every
supervisor should be aware of. Often, the most reliable signal that something may be amiss is a
sudden change in an officer’s behavior, performance or mood. Partners of the affected
individual are in the best position to notice these symptoms since they spend a considerable
amount of time together. Every member of the department should be encouraged to take the
necessary steps should they become aware that a fellow officer may be struggling with issues
that could compromise the safety of the individual, other officers or members of the public.
Guidelines for handling these types of situations can best be addressed by in-service training
seminars on stress management.
Some of the most common behaviors that indicate a FFDE should be considered are
(Hyams, 1998):

multiple demeanor or use of force complaints

evidence of visual/auditory hallucinations

suicidal statements or gestures

dramatic weight loss or gain

change in personal hygiene habits

evidence of substance abuse

excessive absenteeism or lateness

problems with memory
An isolated incidence of negative behavior is typically not an adequate reason to order an
officer to submit to an evaluation. In departments that have a high volume of calls and officers
Flynn, William J., & Stampone, Domenick
7
make frequent arrests, it is unreasonable to expect that the officers can go for prolonged periods
of time without at least a minor demeanor complaint or an occasional accusation of using
unnecessary force. In fact, some officers believe that if an individual assigned to patrol duties
for an extended period of time (more than 3 years) is never the subject of some type of citizen
complaint it is likely the officer is not doing their job. The FBI reports (US Department of
Justice, 2002) that 13,741,438 individuals were arrested by law enforcement personnel in 2002.
This figure averages out to 37,647 arrests per day. The responsibility of enforcing laws and
arresting people is risky business. Tempers flare and good judgment is replaced by irrational
thoughts and actions. When the dust settles, some individuals will accuse the officer of
mishandling the situation. Also, some defense attorneys routinely recommend that their clients
who have been charged with resisting arrest or assaulting an officer sign counter-complaints
against the officer. The defense will then use the charge as leverage in an attempt to negotiate a
plea deal for his client.
The decision to send an officer whose behavior becomes suspect for a FFDE should be
made after considering multiple factors as previously outlined. There are, however, occasions
where the administration of a FFDE should be mandatory. When officers are involved in critical
incidents the department policy should require a FFDE before the officer is allowed to return to
duty. Such a policy demonstrates a genuine concern for the safety and well-being of the
agencies’ personnel and the public. Since it would be mandatory, there is no stigma of weakness
or lack of confidence in an individual’s ability to cope with the pressures of the job. Instead, it is
a way of recognizing the emotional sacrifices officers make and accepting responsibility for
ensuring the employee is psychologically healthy and able to function in a safe manner. An
example of a critical incident would be when an officer has used deadly force or, witnessed the
Flynn, William J., & Stampone, Domenick
8
violent death of another officer. There may be other incidents that trigger critical incident stress
reactions from one officer but not another. For example, an officer that has suffered the loss of a
new-born child may be overwhelmed and unable to function if dispatched to a Sudden Infant
Death Syndrome (SIDS) incident. In this situation, it would be wise to require the officer to be
evaluated.
Sometimes a supervisor is undecided about whether to order a FFDE or to recommend
the employee seek counseling. To assist with making such a decision, the differences between
the two options are illustrated in the table below (Fischler, 2001):
Counseling
Administrator’s primary concern is about the
employee’s personal adjustment – work
problems are absent or mild
Cannot be ordered by administrator – can only
be suggested – participation is voluntary
Employee is primary client – goal is to return
employee to the highest level of emotional
health possible
Psychological testing and collateral
information are usually lacking
Written report may not be sent to the
department or, if sent, may be skewed in the
employee’s favor
FFDE
Administrator’s primary concern is how
employee’s problems affect the job – work
problems are moderate to severe
Administrator generally has authority to order
the exam – participation may be mandatory
Department is primary client – goals are to
determine the employee’s psychological
problems and ability to work
Psychological testing and collateral
information are critical
Written report, with clear objective
recommendations, goes to the department
The Fitness-for-Duty Evaluation Process
At a minimum, the properly administered FFDE should include the following
components (Stone, 1995): a review of all relevant collateral information; psychological testing;
and a comprehensive interview. When deciding how much information is provided to the
examiner it is better to give more than enough as opposed to not enough. The examiner must
have access to enough background material in order to be able to make an accurate assessment of
Flynn, William J., & Stampone, Domenick
9
the examinee’s psychological health. The management of records and findings related to FFDEs
will be discussed under the Legal Issues sub-heading.
Possible Findings of Fitness-for-Duty Evaluations
Police administrators should insist that their mental health professionals provide clear and
concise reports detailing findings, recommendations for treatment, and duty restrictions if
applicable. A sample of some of the possible outcomes is listed below (Guller, 2008):

Fit for Duty – no restrictions

Fit for Duty – with restrictions:
o Light Duty
o Sign gun in/out
o Must be in treatment
o Must be monitored for drugs/alcohol

Not fit for Duty with treatment recommendations:
o Specified course of treatment
o Retraining
o Referred for specialized further exam (neurological, medical)
o After treatment, reevaluation prior to return to duty

Not fit for Duty – with poor prognosis (e.g. dementia or personality disorder), or
multiple treatments have been unsuccessful

Statements that further efforts to correct the condition are likely to be ineffective

Possible recommendation for benevolent termination/involuntary disability
retirement
Flynn, William J., & Stampone, Domenick
10
Legal Issues
While the need for psychological assessment and fitness for duty evaluations is clear, the
administration of a comprehensive policy can often become entangled in legal and ethical
rhetoric. There is no substitute for consulting a labor attorney as an essential step in avoiding
and/or minimizing the effect of lawsuits as a result of pursuing a FFDE. Nevertheless, the police
manager or government administrator must have a basic understanding of case law when seeking
to implement a FFDE.
Duty to Monitor Psychological Fitness
Police departments have a continuing duty to monitor the psychological fitness of police
officers. That duty does not end at hiring but rather continues through the retention of police
officers. In Bonsignore v. City of New York,[1], failure to conduct some type of psychological
testing of police officers constitutes gross negligence. Hild v. Bruner,[2] ruled that in civil rights
action filed by victim of an assault by police officers, a jury could reasonably infer gross
negligence from town’s failure to perform any psychological testing of its officers. Police
agencies may not invoke the doctrine of immunity when defending against a lawsuit brought by
a plaintiff claiming the agency was negligent in failing to conduct psychological examinations of
its employees, decided in Davis v. Hennepin County,[3].
Right to Order Evaluations
Mandatory psychological evaluations have been consistently upheld so long as the order
is reasonable. Brown Co. Sheriff’s Dept. v. BCSD Employees Assn.,[4]; Flynn v. Sandahl,[5].
Public policy dictates that administrators have the right to order FFDEs to protect the public
interest and the efficiency of the Department. Conte v. Harcher,[6]. These FFDEs can be
Flynn, William J., & Stampone, Domenick
11
performed on a regularly scheduled basis so long as officer’s constitutional right to privacy is not
violated. New Jersey Transit PBA v. New Jersey Transit,[7].
Generally No Right to Challenge an Order for FFDE
In most jurisdictions, failure to submit to an otherwise reasonable order for FFDE
amounts to insubordination. Risner v. U.S. Dept. of Transp.,[8]. Disciplinary action for failure to
submit to an order for FFDE can include counseling, suspension and termination. Curtis v. Bd. of
Police Commissioners of Kansas City,[9] (counseling can be lawfully ordered as an alternative to
disciplinary sanction); Haynes v. Police Bd. of Chicago,[10] (refusal to submit to FFDE is
grounds for dismissal). In New Jersey, a police officer has no right to arbitration regarding an
order to submit to a FFDE as such order is not considered disciplinary action. City of Elizabeth
v. Superior Officers Association,[11]. Contrast New Jersey’s view with that of Minnesota where
such an order to submit to FFDE was specifically held to be greivable and therefore subject to
arbitration. Hill v. City of Winona,[12].
Officers Cannot Challenge Evaluations on Either Constitutional or ADA Grounds
While the court in McKenna v. Fargo,[13] found that constitutional protections provided
by the First, Fourth and Fourteenth Amendments were triggered by a demand for FFDEs, such
an order was justified by the State’s compelling need for the evaluations. Similarly, an order to
undergo a FFDE is not a “prohibited inquiry” that would otherwise be barred by the Americans
with Disabilities Act (ADA). Watson v. Miami Beach,[14]. The Watson Court reasoned that such
an examination was job-related and consistent with business necessity.
Flynn, William J., & Stampone, Domenick
12
Conduct Justifying a FFDE
The following is not an exhaustive list. Ultimately, when determining whether an
employer’s order for a fitness for duty evaluation is justified, the courts will apply a reasonable
person (employer) standard. Law v. Garden State Tanning,[15].
● Making threatening remarks. Flynn v. Sandahl,[16]. Corrections officer accused of
making threatening remarks to coworkers.
● Accusations of sexual misconduct. Haynes v. Police Bd. of Chicago,[17].
● Alleged use of excessive force. Conte v. Harcher,[18].
● Domestic violence. Essex County (NJ) Prosecutor Directive. When officer is accused
of domestic violence, even if charge is ultimately dropped, that officer must surrender weapon
and may not return to duty until psychologically cleared by department appointed psychologist.
● Learning that an officer is taking Prozac. Krocka v. City of Chicago,[19].
● Mildly paranoid, hostile or oppositional. Watson v. Miami Beach,[20].
Conduct Not Justifying a FFDE
● Whistleblowers. Federal law prohibits federal employers from requiring FFDEs of
employees who claim to be whistleblowers. H.D.[21]. That protection, however, disappears if the
officer blows the whistle to a newspaper rather than through the proper channels. Dennison v.
Penna Dept. of Corrections,[22].
● Use of obscene language. Maplewood and Law Enforcement Labor Service, 108 LA
(BNA) 572 (Daly 1996) (use of obscene language to another public employee did not justify a
FFDE).
Flynn, William J., & Stampone, Domenick
13
● Authorized leave under the FMLA. Under the Family Medical Leave Act (FMLA), an
agency cannot order a confirming FFDE after the employee returns from an authorized leave
with a note from their treating physician. 29 CFR Sec. 825.310(c).
Privacy Concerns
Federal courts
Federal law is quite restrictive regarding the acquisition and dissemination of the results
of FFDEs. Under the ADA, FFDEs are treated as confidential medical records. Americans with
Disabilities Act of 1990, 42 USCA Sec. 12112(d). In Mason v. Stock,[23], the District Court
allowed an officer’s full personnel file to be released to a plaintiff in a civil rights action but
refused to allow that officer’s psychological reports to be released. The United States Supreme
Court held that pursuant to the Federal Rules of Evidence, a psychologist/patient privilege would
prohibit the release of “confidential communications between a psychologist and her patients in
the course of diagnosis or treatment.” Jaffee v. Redmond, (1996). The holding in Jaffee was
relied on in Caver v. City of Trenton,[24] which denied plaintiff’s request for a police officer’s
FFDE in a discrimination lawsuit. Like all privileges, however, the psychologist/patient privilege
can be broken by disclosure to a third party. Siegel v. Abbottstown Borough,[25] (FFDE had been
released to third-party prospective employer so no privilege existed, however, the court still
granted the protective order denying its release in a lawsuit as it remained unconvinced of the
records relevance in the civil action).
State courts
Contrast the federal case law with a New Jersey trial court decision that requires a
balancing test must be applied when determining whether a police officer’s FFDE can be
released in a suit against the officer and the city. Valentin v. Bootes et al,[26] (FFDEs have “clear
Flynn, William J., & Stampone, Domenick
14
relevance” to the claim against the city of its “alleged breach of its duty to properly
psychologically and psychiatrically evaluate the officer.”).
Citing test security and the public interest, the Court in Schroeder v. City of Detroit,[27]
held that police officers do not have a right to obtain a copy of the results of their evaluations.
Nevertheless, there are some common sense exceptions that must be made regarding the
release of FFDEs. Cremer v. city of Macomb Bd. of Fire and Pol. Com.,[28] (evaluation is sought
pursuant to an appellate procedure); evaluation can be released to a pension board when an
officer is pursuing a psychological disability; and when a FFDE recommends counseling such a
report can be released to the treating therapist only.
Miscellaneous case law summaries
● No right to have an attorney present at a FFDE. Nolan v. Police Commissioner of
Boston,[29].
● Officer unable to perform the essential job functions of a police officer were not
entitled to ADA protection and can be ordered to either perform all functions of the position or
apply for a disability. Raspa v. Gloucester County Sheriff’s Office,[30].
● Lying to investigators is grounds for removing an employee. LaChance v. Erickson,[31].
This ruling can be applied to lying during a FFDE (Rostow & Davis, 2004).
● Officer’s disciplinary history, including charges which were not sustained or later
withdrawn, must be made known to the examiner in a FFDE. Colon v. City of Newark et al,[32].
● Background investigators have absolute immunity from a defamation suit. Pollinger v.
Loigman,[33] (background investigation was part of an official government investigation and
therefore investigator is afforded highest level of protection/immunity.
Flynn, William J., & Stampone, Domenick
15
● Police officer may be terminated for threatening to kill himself. Prichard v. City of
Bryant,[34] (ADA and FMLA claims rejected by the District Court) (officer terminated after
telling friend to “send the coroner to my house” and being found holding service revolver to his
head).
● City administrator must forfeit full salary and benefits for appointing police officer
candidate who receives negative psychological evaluation. Clarence Gross v. Town of Cicero,[35]
(Illinois law requires complete forfeiture of salary and benefits for breach of fiduciary duty).
● Police officer holds no fundamental property interest in his employment. Flammer v.
County of Morris,[36] (sheriff’s officer was terminated after FFDE and argued that he had a
fundamental property interest protected by the substantive due process clause of the U.S.
Constitution).
Summary
Having a policy that addresses the points discussed in this paper can eliminate many
problems that will very likely arise when dealing with difficult personnel issues. Taking a
proactive approach towards the health and safety of officers and the public will go a long way
towards instilling confidence and well-being in the organization. The police manager has a duty
to ensure that police officers who interact with the public on a regular basis be psychologically
fit for duty. Knowing the basics of the relevant case law, combined with consultation with an
attorney well-versed in this area of law, allows the police manager to make intelligent decisions
to ensure public safety and to avoid the pitfalls associated with civil actions based on negligent
retention.
Page 16
1
2
References
International Association of Chiefs of Police (IACP) Police Psychological Services Section
3
(2004) Police Psychological Fitness-for-Duty Evaluation Guidelines. Unpublished
4
manuscript.
5
Fischler, G.L. (2001). Psychological Fitness-for-Duty Examinations: Practical Considerations
6
for Public Safety Departments. Illinois Law Enforcement Executive Forum, 1, 77-92.
7
Hyams, M. (1998). Fitness for Duty evaluations: A sample policy. Journal of California Law
8
9
10
11
Enforcement. Criminal Justice Periodicals.
U.S. Department of Justice, Federal Bureau of Investigation. Crime in the United States, 2002
(Washington, DC. 2003) 234
Stone, A.V. (1995). Law enforcement psychological fitness for duty: Clinical issues. In M.
12
Kurke & E. Scrivner (Eds.), Police Psychology into the 21st Century. Hillsdale, New
13
Jersey: Lawrence Erlbaum Associates
14
15
16
17
Guller, M. & Verry, R. (2008). Psychological Fitness for Duty of Public Safety Personnel.
Institute for Forensic Psychology. Unpublished manuscript.
Rostow, C.D., Davis, R.D., (2004) A Handbook for Psychological Fitness-for-Duty Evaluations
in Law Enforcement. Haworth Press Inc., Binghamton, NY.
18
Notes
19
[1] 683 F.2d 635 (2nd Cir. 1982)
20
[2] 496 F. Supp. 93 (D.N.J. 1980)
21
[3] 559 N.W.2d 117 (MN App. 1997)
22
[4] 533 N.W.2d 766 (Wis. 1995)
23
[5] 58 F.3d 283 (7th Cir. 1995)
[Insert Running title of <72 characters]
Page 17
1
[6] 365 N.E.2d 567 (Ill. App. 1977)
2
[7] 384 N.J. Super. 512 (App. Div. 2006)
3
[8] 677 F.2d 36 (8th Cir. 1982)
4
[9] 841 S.W.2d 259 (Mo.App. 1992)
5
[10] 1997 Ill.App.Lexis 832 (7th Cir.)
6
[11] 27 NJPER P 32017 (2000)
7
[12] 454 N.W.2d 659 (Minn.App.1990)
8
[13] 451 F.Supp. 1355 (D.N.J. 1978)
9
[14] 98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.)
10
[15] 159 F.Supp. 2d 787 (E.D. Pa. 2001)
11
[16] F.3d 283 (7th Cir. 1995)
12
[17] 1997 Ill.App.Lexis 832 (7th Cir.)
13
[18] 365 N.E.2d 567 (Ill. App. 1977)
14
[19] 203 F.3d 507 (7th Cir. 2000)
15
[20] 98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.)
16
[21] 4311, P.L. 101-12, Title 5, Sec. 1221
17
[22] 2003 U.S. Dist. Lexis 9579 (M.D. Penna 2003)
18
[23] 869 F.Supp. 828 (D. Kansas 1994)
19
[24] 192 F.R.D. 154 (2000)
20
[25] U.S. District Court for the Middle District of Pennsylvania, No. 1:03-CV-0549 (2004)
21
[26] 325 N.J. Super. 590 (1998)
22
[27] 561 N.W. 2d 497 (Mich. App. 1997)
23
[28] 260 Ill. App. 3d 765, 632 N.E. 2d 1080 (1994)
[Insert Running title of <72 characters]
Page 18
1
[29] 420 N.E. 2d 335 (Mass. 1981)
2
[30] 924 A. 2d. 435 (N.J. 2007)
3
[31] 118 S.Ct. 753 (U.S. 1998)
4
[32] 2006 WL 1194230 (N.J.Super.A.D.), unpublished
5
[33] 25 N.J. Super. 257 (App. Div. 1992)
6
[34] 2006 WL 751296, 2006 U.S. Dist. Lexis 22720 (E.D. Ark 2006)
7
[35] 2006 U.S. Dist. LEXIS 47285 (2006)
8
[36]
2006 WL 776775 D.N.J. 2006 unpublished
9
10
*The authors would like to thank Matthew Guller, J.D. of the Institute for Forensic Psychology
11
for his valuable assistance in preparing this paper.
[Insert Running title of <72 characters]