Fitness for Duty Evaluation can provide concrete information about an employee’s level of functioning and appropriateness for their work environment. By requesting a Fitness for Duty Evaluation, an employer demonstrates good faith in attempting to resolve potentially contentious and litigious workplace situations.
Forensic psychiatrists and psychologists can provide concrete information regarding employees’ abilities, risk factors, and assist in planning for return to work. Typically, a Fitness for Duty Evaluation requires an extended interview between the employee and the doctor. On most occasions, the evaluation will include psychological testing beyond the face-to-face evaluation. The evaluation will cover background information, salient issues that led to the request for the evaluation, mental status, risk factors, and review of treatment to date. In addition, our doctors typically consult with the employer and/or other important “collateral” sources of information about employees’ behavior.
When appropriate, collateral information may be sought from employers (job description, personnel record) and with the employee’s permission from treating psychiatrists and psychologists.
Employers should consider Fitness for Duty Evaluation when they observe any of the following behavior from employees:
- Threat of violence
- Impaired concentration
- Paranoid thinking
- Abusive behavior toward co-workers or customers
- Anxiety, depression, unexplained change in behavior, decreased efficiency, drug and alcohol use.
The California Confidential of Medical Information Act (CMIA) Civil Code Section 56, et seq.
by Bill Hadden and Robert Wexler
The most prominent sources of authority for fitness for duty issues are the California Confidentiality of Medical Information Act (CMIA) Civil Code Section 56, et seq., and the Americans with Disabilities Act (ADA)42 U.S.C. ‘12101, et seq. They will be discussed in order.
I. CMIA PROVISIONS
The CMIA sets forth limitations on the dissemination of private medical information. Section 56.10(a) states: “No provider of health care shall disclose medical information regarding a patient of the provider without first obtaining an authorization, except as provided in subdivision (b) or (c).”
Section 56.10(b) delineates seven circumstances in which a provider of health care shall disclose medical information, such as when the provider is compelled, for example, by court order or by the lawful issuance of process of a board, commission, administrative agency, arbitrator or governmental agency.
Section 56.10(c), subsection (8) is the part of the statute most applicable to employer requested fitness for duty examinations. It reads as follows:
(c) A provider of health care may disclose medical information as follows:
(A) Is relevant in a lawsuit, arbitration, grievance, or other claim or challenge to which the employer and the employee are parties and in which the patient has placed in issue his or her medical history, mental or physical condition, or treatment, provided it may only be used or disclosed in connection with that proceeding.
(B) Describes functional limitations of the patient that may entitle the patient to leave from work for medical reasons or limit the patient’s fitness to perform his or her present employment, provided that no statement of medical cause is included in the information disclosed.
The disclosure of any information by the health care provider to an employer beyond that allowed under subsection (c)(8) requires specific written authorization by the patient to the medical provider (Section 56.11), or to the employer (Section 56.21). An employee shall not be discriminated against in terms or conditions of employment due to a refusal to sign an authorization, pursuant to Section 56.20(b).
The case of Pettus v. Cole 49 Cal.App.4th 402, 57 Cal.Rptr.2d 46 (1996) provides a detailed examination of the application of Section 56.10. That case concerned a 22-year employee of the DuPont Corporation, who sought to take time off from work because of a disabling stress-related condition. After two non-employer doctors recommended that Pettus’ condition warranted a disability leave, Pettus was required to submit to a company doctor, pursuant to DuPont’s short-term disability leave policy. DuPont’s doctors told the employer that Pettus’ stress condition might have been caused or exacerbated by his misuse of alcohol. DuPont required that Pettus enter into a rehab program as a condition of employment, and when he refused, terminated him. Among the issues presented for legal review was the propriety of DuPont’s doctors revealing the detailed circumstances of Pettus’ interviews with them, as well as that of DuPont’s disciplinary action based upon such interviews. In short, the court found that the doctors had violated Section 56.10(c)(8) in revealing information far beyond that allowed by that Section. Furthermore, the court found that DuPont could not compel Pettus’ attendance in a rehab program under penalty of termination, as employees alone are vested with the decision-making process relating to their own health care.
In Pettus, DuPont alleged that Section 56.10 did not protect Pettus because he did not qualify as a “patient” within the meaning of this statute, and that DuPont’s doctors were not “providers of health care” under the circumstances. The court rejected both contentions, finding that, not withstanding that Pettus received no treatment from DuPont’s doctors, Pettus still qualified as a “patient” pursuant to the definitions in the Act and that DuPont, by generating “medical information” met the statutory definition of a “provider of health care”. As stated by the Pettus court:
The Legislature clearly intended for the statute to afford employees in Pettus’ situation, i.e., where the employer has requested and paid for medical examinations to determine the validity of a claim for medical leave benefits – some protection by imposing a duty on health care providers involved in the procedure a duty to maintain, at least to a limited degree, the confidentiality of the employee’s medical information. . . . Indeed, subdivision (c)(8)(B) expressly refers to an employee who is examined by health care provider, at the employer’s request and expense, as a “patient.” (Pettus, at 57 Cal.Rptr.2d, 64-65)
Section 56.16, however, permits health care providers to discuss general medical information about a patient without his or her consent, unless the patient provides the physician with a specific written request to the contrary. The California Court of Appeal, in Garrett v. Young, (2 Dist, 2003) 109 Cal.App 4th 1393, 1 Cal.Rptr. 3d 134, recently upheld a decision dismissing an employee’s action against her physician for invasion of privacy and violation of the CMIA, despite the fact the employee advised her doctor verbally not to share any information with her employer. The Court noted that the legislature’s intent in enacting the CMIA was “to permit disclosure of general information without imposing burdensome paperwork or administrative requirements on medical providers, which could too easily lead to technical violations of the Act and litigation over inconsequential disclosures.” The Court refused to read into the statute a formal requirement that physicians notify patients that general medical information may be freely discussed. Instead, after conducting a thorough review of the history of Section 56.16, the Court reasoned that the Legislature intended the burden to be on the patient to provide a written notice to the doctor that he is prohibited from disclosing even general information. Any expectation that “busy physicians should be expected to recall oral instructions not to speak to a specific party, such as an employer, was not reasonable under the statute.”
II. A.D.A. REQUIREMENTS
The protections of the Americans With Disabilities Act (ADA) prevent an employer from:
a. Requiring a medical examination; or
b. Inquiring as to whether an employee has a disability; or
c. Inquiring as to the nature or severity of any disability; UNLESS
d. The inquiry or examination is “job related and consistent with business necessity”. (42 USC Section 12112(c)(4)(A))
The purpose of these restrictions is to prevent the administration to employees of medical tests or inquiries that do not serve a legitimate business purpose.
Conversely, the EEOC in interpreting the ADA has recognized that an employer may make some medical inquiries and require fitness for duty exams. However, the employer’s inquiries are limited to inviting employees to indicate whether they have a disability, and to what extent. The employee may not be compelled to reveal a disability to the employer. Where an employee voluntarily discloses the disability or other medical information, the employer will not be held deemed to have violated the Act, but the employer is restricted from requesting, persuading, coercing or otherwise pressuring the individual to obtain such disclosure.
III. COMMON QUESTIONS
We will now apply the above background to answer some of the most common questions relating to fitness for duty matters.
A. If I don’t sign any waiver form, what information is the doctor allowed to give to my department?
Based on Section 56.10(c)(8)(B), the doctor may only provide sufficient information to say whether you are fit for duty, and to describe any functional limitations. The doctor would be precluded from providing any statement of medical cause. For example, the doctor may tell the department that an officer cannot presently handle the stress of patrol duties, but may not tell the department that the officer is suffering from post-traumatic stress disorder.
B. Is there a traditional doctor-patient relationship with the fitness for duty doctor?
No, but this does not mean that there is no confidentiality as to the information you provide to the doctor, as long as you do not provide any additional authorization to release your medical information. Under the CMIA, a doctor is limited as to what information can be revealed to the employer and the doctor has no authorization under the statute to reveal the information to any other parties, except under very limited circumstances.
C. Do I have to sign any authorization or waiver form in the doctor’s office?
No. There should be no need for you to sign any such form, as the doctor may reveal to the department a statement of your fitness and functional limitations without any authorization pursuant to Section 56.10(c)(8)(B). In addition, you may not be discriminated against in terms or conditions of employment due to your refusal to sign an authorization form (Civil Code Section 56.20(b)). Sadly, we have found numerous doctors performing fitness for duty examinations who entice an already emotionally disadvantaged officer to sign a detailed waiver, attempting to limit the doctor’s liability and allow the doctor to communicate any part of the examination to anyone that the doctor may choose. Most of these “authorizations” that we have seen are unlawful, as failing to meet the detailed statutory requirements for a waiver set forth in Civil Sections 56.11 and 56.21. Remember, virtually all the information your department needs can be communicated without your waiver. Signing a waiver form will only allow the release of more private information, which in most circumstances will be unnecessary.
D. Is there any time when I will want to sign an authorization form?
It is possible that an employee may wish to share more information with his or her department about his or her medical condition so that a department can better provide reasonable accommodation to that employee in accordance with the provisions of the ADA However, any employee contemplating the signing of an authorization, waiver, etc., should contact legal counsel before doing so.
E. Is my statement to the doctor considered a compelled statement that cannot be used against me for any criminal purpose?
An order that directs an employee to discuss his psychological state during a fitness for duty examination would appear to qualify as a compelled statement in accordance with the standards set forth in Lybarger v. City of Los Angeles, such that the statement could not be used against the employee for any criminal purpose. However, as an exercise of caution, employees should request that the department provide a written order to cooperate in the fitness for duty examination, so that the compulsory nature of the discussion with the doctor is firmly established.
This article is intended to provide general guidance to those subject to fitness for duty exams and cannot comprehensively address every issue. However, involved officers should always avail themselves of the opportunity to contact legal counsel before attending the exam to make sure that their rights are best protected.
About the Authors: Bill Hadden and Robert Wexler are partners in the Santa Monica law firm of Silver, Hadden and Silver, which has specialized in representing public safety associations and their members for over 30 years.