Audit, Compliance and Risk Blog

When an employer becomes concerned that an employee may be incapable of performing his or her job, one response is formal evaluation of that employee’s “fitness for duty (FFD).” Although most cover physical abilities, referrals are also made for psychological FFD evaluations, to determine whether an employee has a psychological impairment that makes him or her unable to perform effectively and safely. These may be triggered when an employee is exhibiting signs of psychological or emotional stress, including those that manifest in hostile or threatening behaviors, or in other behaviors that lead co-workers, or the employer, to be concerned for their safety.

Practicing psychologists and psychiatrists have developed fairly standardized approaches to these evaluations, and to procedures for employer referrals and responses to the results of evaluations. Employer best practices follow these approaches and the following discussion summarizes them.

What Situations May Trigger a Psychological FFD Evaluation?

FFD evaluations impinge on the target employee’s expectations of privacy and right to be free from possible disability-based discrimination. The Americans with Disabilities Act (ADA) allows FFD referrals only when there is an “objective and reasonable” basis for concerns about the employee’s effectiveness or safety, derived not just from speculation about the employee’s state of mind, but from direct observations, credible third-party reporting, or other reliable evidence.

Unfortunately, no clear standard defines an “objective and reasonable” basis for concern. A physical attack meets (or exceeds) this threshold, but what about muttered threats – in a single incident or repeatedly? Is it enough that co-workers have become fearful? In the absence of clear guidance an employer’s best recourse is, before-the-fact, to establish employee reporting procedures – including a Threat Assessment Team (TAT) if one exists – to ensure that management receive timely warning of threatening situations, structured to inform a thoughtful evaluation about whether referral is appropriate.

Fortunately, an employer can distil some guidance from the types of information a psychological professional would expect to find in a referral:

• description of the objective evidence giving rise to concerns about the employee’s fitness for duty, including:

  - the incident(s) or situation(s) leading to the referral;

  - additional information collected or developed during post-event investigation, if any.  This should include information developed in the workplace (employee’s records, co-  worker interviews, etc.), as well as any additional background material from outside the workplace.

• record of the employer’s analysis (e.g., report from the TAT or HR) and decision to make the referral; and

• any particular questions that the employer needs the evaluator to address.

This referral must be documented in writing.

Obtaining the Employee’s Informed Written Consent

The employer should inform the employee in writing of all of the following:

• a referral for a psychological FFD being made, and the grounds for doing so;

• details of information that will be transmitted to the evaluator, and the expectation that the evaluator will use that information as a starting point to apply his or her own expertise to conduct the evaluation;

• nature and scope of the evaluation;

• the employee’s status pending completion of the evaluation (e.g., on leave with pay);

• limits of confidentiality, including any information that may be disclosed to the employer without the examinee’s further authorization;

• potential outcomes and probable uses of the examination in determining continued employment; and

• other provisions consistent with legal and ethical standards for mental health evaluations conducted at the request of third parties.

Employers typically condition the employee’s continued employment on his or her participation in the psychological FFD evaluation.

The employer must obtain the employee’s informed written consent to the following:

• transfer of information from the employer to the evaluator;

• conduct of the psychological FFD evaluation itself, and the employee’s agreement to participate; and

• release of the evaluator’s findings and report to the employer.

Consent is needed to justify the exception to doctor-client confidentiality provisions that typically cover medical and psychological evaluation and counseling (this differs, for example, from encouraging an employee to tap Employee Assistance Program (EAP) resources for anger management). Note that this does not mean that the employee is being required to consent in advance to accept the evaluator’s findings or recommendation, or consent to the employer’s response to the findings.

Evaluation Report and Recommendations

After referral is made and information transferred, the evaluator and employee will meet for the evaluation. After completion of the evaluation process, the evaluator will provide the employer with a written report describing the initial rationale for the evaluation, the evaluator’s methods, and whenever possible a clearly-articulated opinion on whether the employee is presently fit for unrestricted duty. The content of the report will be guided by the terms of the employee’s informed consent and authorization, relevance to the employee’s psychological fitness, relevant elements of the employer’s policies and procedures (including any labor agreement), and relevant employment law. The evaluator may find the employee to be:

• fit for duty, with no restrictions,

• fit for duty, but with restrictions or modifications, or

• unfit for duty.

Unless the evaluator finds the subject employee fit for unrestricted duty, the report should contain at least the following information (unless prohibited by law, employer policies or labor agreement, the employee’s disclosure authorization, or other considerations):

• description of the employee’s job-relevant functional impairments or limitations; and

• an estimate of the likelihood of, and time frame for, a return to unrestricted duty and the basis for that estimate.

Some FFD evaluators may recommend courses of treatment (e.g., medication, therapy or counseling), recommend work restrictions or accommodations, and/or other interventions. Others decline to do so in order to reinforce that their report is diagnostic and not therapeutic, and to leave follow-up to the employer and employee (and his or her treating physician or mental health professional as appropriate).

Implementation Checklist

1. Establish a policy governing psychological FFD evaluations.

Has the organization promulgated an FFD policy?
If yes:

• Does the policy address only psychological FFD evaluations?

or

• Does it also include evaluations of physical and non-psychological medical FFD?

• Does the policy require FFD evaluations as conditions for return to work? 

2. Specify the coverage and scope of the psychological FFD policy, and associated procedures, rights and obligations.

• Does the policy include a statement of general purpose? 

• Does the policy identify behaviors and circumstances that may trigger a psychological FFD evaluation? 

• Does the policy clearly establish and define responsibilities – employees, supervisors/managers, and specific organizational units involved (such as Human Resources and Threat Assessment Team)? 

• Does the policy summarize general procedures to be followed?

• Does the policy set forth subject employees’ rights and obligations?

• Does the policy set forth the organization’s rights and obligations?

• Does the policy state the qualifications necessary for the psychological FFD evaluator? 

• Does the policy summarize the contents of a psychological FFD evaluation and report? 

• Does the policy specify provisions for access to and storage of each report? 

• Does the policy address return to work considerations? 

• Does the policy describe any applicable appeal and/or second opinion procedures?

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Workplace Violence Prevention: A Practical Guide to Security on the Job, OSHA Compliance: A Simplified National Guide and Greenhouse Gas Auditing of Supply Chains.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com.