Fit For Duty

Strategic Security
Fit For Duty
 

Security professionals are a company’s first line of defense in preventing and dealing with employee threats, violence, corporate sabotage, and other wrongdoing in the workplace. Amid the recent rise in workplace violence, security executives have led efforts to implement procedures aimed at countering cyberthreats, establishing a drug-free workplace culture, and eliminating hostility and harassment on the job.

These types of issues, however, can make both employees and supervisors hyper vigilant of their surroundings. This is especially true for security personnel, who make daily in-the-moment decisions that can affect the safety of those around them.

Thus it is imperative that security directors and other decision makers have confidence that their employees are psychologically fit to perform their jobs. When they are not, the outcomes can be catastrophic, resulting in significant harm to the company, or even serious injury or death in the workplace. In this context, psychological fitness for duty evaluations (FFDE) can be instrumental in promoting safety and ensuring that employees can competently perform their jobs. 

The mechanics of an FFDE may vary, but some patterns are common. Often, but not always, psychologists and psychiatrists who conduct FFDEs are chosen by an independent company, usually referred to as a fitness for duty evaluation facilitator, which can coordinate the assessment process. This organization protects the employee, employer, and employee assistance program (EAP) in a number of ways, including ensuring that the doctors are well qualified and use appropriate and thorough assessment techniques.  

FFDEs often include a lengthy clinical interview.  Objective psychological testing is also an important part of the assessment process; doctors can review available medical records and even call the professionals who prepared those materials. In addition, they can contact workplace supervisors to learn about the employee’s at-work behavior, past and anticipated job stressors, and anticipated levels of support.  

The independent company, or facilitator, can help employers develop their referral questions for the doctors in a manner that will both help them make employment decisions and comply with applicable laws. This independent entity also provides other services, such as delivering the doctors’ reports to employers. The facilitator can act as an intermediary when doctors contact employers to discuss results with them and to ensure that all of their questions are answered. 

Following are some real-world examples of typical scenarios employers face every day, based on composites drawn from common incidents. They illustrate that psychological issues can affect people of any age, race, or sex, and in any type of employment setting—including a security operation. Using these examples as context, the article offers best practice guidance on how to use and administer FFDEs and how to comply with applicable laws and current requirements.  

Inappropriate Behavior 

The senior management team decided to downsize the company. Its vice presidents announced the layoffs, following the guidelines set out in the company’s employee assistance program. During the announcements, an employee appeared to be deeply distraught. Security personnel overheard him yell, “Wait ‘til I get back to my computer—maybe then this company will suffer and know how powerful I can be!” 

The employee’s closest coworkers were obviously rattled by this incident. Nobody knew if this was a true threat or a harmless outburst because such behavior was out of character for this employee. Management, however, had noticed that this employee had been moody, angry, and distraught in prior days, and so they suspected the employee was experiencing some psychological problems. As a result, management requested a psychological FFDE. 

Fortunately, the FFDE revealed that this long-term, previously stellar employee had a low potential for violence. It also revealed that he was experiencing some personal difficulties, but there were no signs of a major psychological problem. Management then worked with him and his fellow employees to encourage more appropriate workplace behavior and de-escalate the tensions he had caused.

As this example shows, organizations often struggle to determine whether or not an employee’s behavior poses an actual threat to the workplace. However, it’s the security professional’s responsibility to be vigilant regarding an employee’s warning signs and to understand when it is necessary to take action. Knowing when to consider an FFDE is vital to ensuring that the workplace remains a safe and productive environment for employees. 

An FFDE is appropriate to consider when employee behavior includes threats of violence, inappropriate outbursts, suicide threats or attempts, serious employee errors, or sudden changes in mood or bizarre behavior. It’s also appropriate if management suspects the employee is suffering from a medical condition or if management has received reports from coworkers that an employee is being hostile or behaving in a way that is dramatically increasing tension at work. If management suspects that mental impairment is the cause for the employee’s difficulty, then a referral for an FFDE may be appropriate, regardless of whether there has been one incident or a pattern of behavior.

 To make this judgment effectively, security directors in most cases should cooperate with HR, legal, and other managers to make the request for an FFDE. Not requesting such an evaluation may lead to legal implications and jeopardize workplace safety. Thus, as outlined below, it is imperative that security professionals know what an FFDE is, when to request one, and when applicable laws may prevent one from being requested.  ​

When to Evaluate

Jason has worked for a large international defense contractor for 18 years. He has held several positions during that time, including a three-year period during which he was a supervisor. A year ago, Jason was demoted because of his verbal aggressiveness with customers and an explosive temper with new employees. For example, after one disagreement he threatened to burn down a coworker’s house. 

After a complaint from a female colleague, Jason was required to attend a communications skills workshop and counseling with the company’s EAP. After one counseling session, he said, “No one is going to tell me what to do, and I will keep my rifle in my truck when I come to work—every day!” Further, he threatened to use his gun at work if he were provoked.

An FFDE revealed that Jason had recently started collecting weapons, wearing camouflage, and fantasizing about killing a coworker. There were no outward signs of mental illness. However, due to his threat, his violent fantasies, and other inappropriate workplace behavior, Jason was fired to protect workplace safety.

State and federal laws, as well as collective bargaining agreements and civil service policies, often give employers the authority to require FFDEs. According to the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, inquiries or medical examinations are permitted if they address reasonable concerns about whether an individual is fit to perform the essential functions of his or her position.

Thus, an employer can generally require an FFDE if it is job-related and consistent with business necessity. This standard will be met if the employer reasonably believes, based on objective evidence, that the employee’s ability to perform essential job functions will be impaired by a medical condition, or if the employer suspects the employee poses a direct threat to his or her own safety or others. According to the EEOC, this standard may be met when an employer knows about a particular employee’s medical condition, an employer has been given reliable information by a credible third party that an employee has a medical condition, or an employer has observed symptoms indicating a suspected medical condition, has observed performance problems or safety issues, and can reasonably attribute the problems to the medical condition. 

Still, employers who want to administer comprehensive FFDEs must be aware of the many relevant laws. Nervous employers sometimes ask for FFDEs when employees show behavior that, although worrisome, does not impact performance or jeopardize safety. For example, an employee might report paranoid thoughts to a close confidante, but still perform his or her job duties and show no signs of anger. The Americans with Disabilities Act (ADA) generally prevents FFDEs in such circumstances, under the rationale that the employee’s thoughts neither affect his or her ability to perform critical job tasks nor reveal indications of potential violence. In sum, if the employee has not endangered his or her own job performance or workplace safety, the employer may not request an FFDE, even though the employer might suspect mental illness.  

On the other hand, in safety-sensitive fields, such as aviation, law enforcement, healthcare, and transportation, the threshold for requiring an FFDE is lower. Preemptive FFDEs, requested before work performance has declined or safety issues have become apparent, may be appropriate. Because an employee’s behavior in these fields may threaten workplace safety or endanger the lives of others, it is critical for employers to monitor warning signs in these employees. These warning signs, if negligently ignored, can leave companies liable for their employees’ behavior. Juries commonly award multimillion-dollar judgments against employers for failing to take appropriate action regarding impaired or dangerous employees.

In addition, certain state and federal laws, such as the U.S. Occupational Safety and Health Act of 1996, require employers to proactively maintain workplace safety. And in some instances, courts have found that in highly stressful and dangerous jobs, employers might have the obligation to require an FFDE even before the employee’s job performance declines.  ​

Best Practices

Jim had been with ABC Trucking Company for 15 years. He had been a trustworthy and reliable driver for most of that time. His dispatcher noticed that recently he seemed confused and was often late completing deliveries. Security personnel suspected that drug use might be a factor. When confronted with these issues, Jim claimed to have no idea about his problems. After a psychological FFDE, it was clear that he had early signs of dementia. The company then arranged for his transfer to a different position, and eventually for his early retirement.

In another case, Judith, an older employee, was having work performance issues. It was her job to monitor the feeds from security cameras, and she recently failed to identify a break-in. She also had become irritable, snapping at customers and coworkers. Thinking she might be depressed or have some other medical issue that was impairing her cognitive ability, the employer referred her for an FFDE. The psychiatrist who performed Judith’s FFDE noticed that she relaxed considerably, and seemed less distracted, when she moved from the noisy waiting area to the privacy of his back office. Upon questioning, he learned that Judith’s new hearing aid picked up sounds from distant corners of the large work area around her desk. When this happened, she felt anxious and distracted. His suggestion to move her to a quieter work area resulted in a tremendous improvement in mood and concentration. 

To ensure that workplace safety remains protected, security executives should have well-thought-out practices for both arranging the FFDE and proceeding once the completed report is received. To achieve this, companies should follow an eight-step program–purpose, policies, protocol, paperwork, procedures, partnership, personalization, and a plan.  

Purpose. The first step is to know the purpose of the FFDE. As required by the ADA, such examinations must focus on the employee’s ability “to perform essential job functions or to work without posing a direct threat.” Therefore, security executives must be clear in their purpose of determining an employee’s ability to safely carry out tasks critical to his or her performance. Thus, the FFDE must be designed to answer very specific questions. 

Policies. The company should develop well-defined FFDE policies. These should be informed by state and federal law and be applicable to collective bargaining agreements. Employer security policies should identify scenarios when an FFDE might be appropriate and when FFDEs should be mandatory. They should also specify the manner in which the employee is notified about the FFDE—typically, both orally and in writing. The policy should clearly establish the consequences for employees who refuse to participate. 

Protocol. The next step is to establish a collaborative team protocol to ensure that only the appropriate parties see an employee’s sensitive information. This may include security, HR, legal, and EAP professionals. It is critical to identify each player’s role and determine who works with the employee and who works with management. Keeping these areas separate can help the company maintain employee confidentiality and preserve working relationships. 

For example, if EAP professionals work directly with the evaluating psychologist or psychiatrist, they might become aware of an employee’s personal information. To the extent that this is not relevant to job performance, they should protect that sensitive information from other team members. Similarly, the employer’s lawyers might work only with the employer, rather than with the employee. 

Paperwork. Companies must determine the paperwork needed to document the objective evidence required to justify the FFDE. This can include the employer’s direct observations, credible third-party reports, or other reliable evidence. 

An employer should be able to create a detailed statement of the problems that led the company to the conclusion that the employee is unable to safely perform the essential functions, and why a medical condition may be contributing to these problems. The amount of evidence necessary to support an FFDE depends on the functions of the job; safety-sensitive jobs often require less evidence. 

Procedures. As part of the program, companies must also establish referral procedures to send employees to the appropriate mental health specialist. To do this, the nature of forensic FFDEs must be understood. In clinical treatment exams, doctors typically develop a therapeutic alliance with their own patients. In contrast, a forensic FFDE doctor does not establish a standard doctor/patient relationship. FFDE doctors, such as psychologists and psychiatrists, do not treat the employee, but instead impartially gather objective evidence. They then give the employer the information they need to make the best employment decision. They do not have a primary obligation to the employee, and therefore they can more impartially protect the workplace. Hence, it is usually a poor practice to enlist the services of a doctor who establishes a treatment alliance with employees and does not understand the importance of neutrality. 

Objective psychological testing can be an important part of the data collection that goes into a forensic FFDE. Such testing can improve doctors’ accuracy and help the evaluation withstand the scrutiny of litigation. 

The FFDE can make use of the many assessment tools that have become commonplace during hiring, career promotion, and leadership development programs. Courts often place significant weight on objective psychological test results, so obtaining an FFDE from a doctor who incorporates objective testing can be a good practice for ensuring the most accurate and objective information and guarding against legal challenges.

Partnership. Companies should consider establishing a partnership with a third-party facilitator. This independent entity can select a doctor and help encourage a thorough assessment, with psychological testing, that is consistent with state and federal laws. A third-party facilitator may serve as an intermediary between the doctor and the employer, which can reduce concerns about the employer having undue influence on the doctor. The facilitator can also oversee the assessment process. 

Personalized. Personalized referral questions should be written to address the specific circumstances of each individual referral. These should be written to help the employer get the information needed to make the best employment decisions, while not overstepping the limitations on FFDEs imposed by law. For example, the employer may not write overly broad questions requesting information about the employee’s complete medical or psychiatric history. The referral questions should be limited in scope and clearly tied to employment.  

Plan. The final step is to have a clear plan for the results. The results of an FFDE might reveal that an employee is fit for duty, needs treatment or accommodations, could be helped by managerial changes or a work adjustment, or is unfit and presents a clear safety risk or is unable to perform job tasks. Given this range of possible scenarios, the employer must have a clear plan of how to take action based on the report. 

This is a good time to rely on the internal team. Knowing about security, the law, EAP, accommodations, and disability management, they can coordinate their efforts to achieve the most beneficial outcome.  

Fitness for duty evaluations, when focused on employee work behavior and consistent with the law, can greatly help employers maintain safe workplaces. But achieving this end can require the collaboration of professionals with different areas of expertise. Fortunately, this goal is within reach of most employers who take the time to learn about the potential benefits, and how to avoid the risks, of FFDEs. 

Dr. David Fisher is a psychologist and has been president of PsyBar LLC since 1995. Fisher oversees independent psychological and psychiatric evaluations performed across the country through a network of 1,800 psychologists and psychiatrists. He publishes and lectures on psychiatric and psychological assessment, and has developed national assessment protocols.