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Officer is Unfit for Duty: Now What? Return to Work Agreements and Other Accommodations
Anthony Stone, Ph.D., MPH
Stone, McElroy & Associates
4015 South Cobb Drive, Suite 265
Smyrna, Georgia 30080
770-431-6858 www.stonemcelroy.com
Presented at the IACP Annual Meeting
Chicago, Illinois
October 2011
Mike Tyson’s FFD Evaluation
PRECIPITATING EVENT - 1997
Tyson bites Alexander Holyfield's ears during fight in Las Vegas.
Tyson’s Nevada boxing license suspended.
FITNESS FOR DUTY REFERRAL
Tyson ordered by Nevada Boxing Commission to pay for and undergo a Fitness for Duty evaluation to regain his Nevada boxing license.
FITNESS FOR DUTY EVALUATION
Five day evaluation at the Harvard Medical School by psychologists, psychiatrists and neurologists
Mike Tyson Fitness for Duty Evaluation
FINDINGS
Cognitive – Limitations in attention, short-term memory, fine motor
coordination
Psychological – No major mental illness or personality disorder
– Features of Dysthymia
– Hyper-vigilance (similar to, but less severe than, paranoia)
– “Issues related to his personality,” including low self-esteem and trusting others
– Difficulty in managing emotional responses and anger.
Tyson Fitness for Duty Evaluation
Referral Question from Boxing Commission
Is Tyson “…mentally fit to compete within the rules
and regulations of the sport of boxing without
succumbing to another incident wherein Mr. Tyson
says he “snapped?””
Conclusions from Evaluation
Tyson is mentally fit to return to boxing.
HOWEVER
Tyson should be engaged in a course of
regular psychotherapy.
For unfit officers…
FFD practices among even highly
experienced police psychologists vary
widely Curran (2008). If officer is unfit,
does provider offer recommendations?
No recommendation 19%
Always recommend 55%
Fitness for Duty Evaluations should help agency
address a problem. What problem??? Problem evolves from a situation -- An officer (or dispatcher or
other employee) appears to have a psychological problem
that interferes with job performance or that otherwise creates
a job- related risk of harm (in a broad sense).
• multiple tardiness events -> ofc. blames on alcohol
• Ofc. seems distraught, arrests down, accidents up, etc.
• Ofc. receives multiple courtesy complaints, irritable, admits
problems at home impairs concentration
• Call outs to officer’s residence regarding domestics – wife
withdraws complaints
Three Critical Elements in a FFD:
An apparent mental/emotional impairment in an employee;
A realistic threat of a significant harm to the organization and
those for whom it has responsibility. Among the threats are:
Physical harm to individuals for whom the organization has some
degree of responsibility
Department effectiveness and efficiency
Efficient operations
Organizational Property
Reputation of the Organization
Reputation of the Profession
The threat appears to result from employee’s impairment.
Two key, potentially conflicting, obligations
MISSION-RELATED OBLIGATIONS
TO ACHIEVE THE PUBLIC SAFETY GOALS AND
OBJECTIVES ESTABLISHED FOR THE AGENCY …
EFFECTIVELY, EFFICIENTLY, SAFELY, ETC. …
SO AS TO:
UPHOLD THE REPUTATION OF THE AGENCY AND THE
PROFESSION (AVOID ADVERSE PUBLICITY)
MAINTAIN WORKPLACE SAFETY (OSHA, STATE OSHA’S)
ASSURE THAT OFFICERS MEET STANDARDS ( AVOID LEGAL
CLAIMS FOR NEGLIGENT RETENTION, SUPERVISION, ETC.)
ASSURE CONFORMANCE TO FIDUCIARY OBLIGATIONS
MAINTAIN STANDARDS OF AGENCY
PERSONNEL-RELATED OBLIGATIONS
TO GIVE CONSIDERATION TO PERSONAL NEEDS
- CIVIL RIGHTS OF THE INDIVIDUAL OFFICER
• HUMANITARIAN CONCERNS
• LEGAL COMPLIANCE
AGENCY AND JURISDICTION PERSONNEL POLICIES
STATE AND FEDERAL LAW AND REGULATIONS E.G.,
ADA, FMLA)
COLLECTIVE BARGAINING AGREEMENTS
ETC
Fictitious Case - Ofcr. Richard Roe 30 year-old male patrol officer – 8 years with Average County PD
Referral Incident(s) Receives two courtesy complaints within one week and has one
accident
Appears angry, disheveled, agitated at work…
Meets with sergeant… expressed feelings of being “punished” by the
department in various ways and makes repeated statements that he
“… hates [the department]” and “… he’s not going to take it anymore
Roe kicks door after coming out of meeting with sergeant for which he
receives a two day suspension for insubordination.
Investigation summary:
Roe reported to a fellow officer that he:
left his wife a week ago living at a motel drinking a lot cannot sleep cannot concentrate
Ofcr. Richard Roe (Continued) Prior similar episodes
6 months prior to current episode: Roe and wife separate for first time…
Similar acting out for which Roe is given Mandatory EAP Referral
Roe attends one appointment… no further information
Situation improves after a month (apparently he and wife reconciled)
Ofcr. Richard Roe (Continued)
Receives slightly more courtesy complaints than average officer.
No use of force issues on the job.
Roe’s history in agency – Seen as “difficult person”
throughout career. Longstanding sub-threshold difficulties
getting along with a number of peers and supervisors in the
department, although not to the point that these have
merited documentation or discipline.
Options DO NOTHING Wait and see if it gets better … or worse. DO SOMETHING –Treat as disciplinary matter (attendance, sick leave
abuse). –Treat as performance matter (low productivity, stats). –Early Warning System ? –Gather more information
–Review officer’s departmental record. –Re-interview fellow officers who had voiced concerns. –Talk to previous supervisors about prior instances. – Interview officer for more information about his psych status. –Ask other supervisors about their observations.
–Get advice from legal, HR, IA or other appropriate resource.
–Refer to Employee Assistance Program. –Get advice from Police Psychologist –Consider Fitness for Duty Evaluation
FFD CONCLUSION:
1. OFFICER SUFFERS FROM A MENTAL
IMPAIRMENT (CONDITION, ETC.) e.g.,
2. Diagnostic Impression:
Axis I Adjustment Disorder
Axis II Features of a Personality Disorder
3. OFFICER IS UNFIT FOR UNRESTRICTED LAW
ENFORCEMENT DUTY
FAST FORWARD
Unfit for Duty Conclusion => New Options Fire Officer Anticipate pushback: Legal action, union action, civil service reversal Suspend Officer Delays, rather than resolve, situation Obtain Second Opinion Often fails to resolve situation Ask Examiner for suggestions Recommended Treatment??? Follow up FFD Evaluation? –Consider Return to Work Agreement AKA Last Chance
Agreement Quid pro quo – Officer keeps job --- Department avoids unpredictable, costly, drawn out, unpleasant course of events while (hopefully) controlling risk, maintaining MISSION RELATED OBLIGATIONS
Return to Work Agreement aka
Last Chance Agreement
DEFINITION: A formal, structured agreement between an
employer and an employee who fails to meet critical job
requirements (under-performs), violates rules of conduct or
in violation of workplace rules to the point of facing
discharge… basically a deal in which the employer grants
the employee one last chance to keep his job (or in some
cases be reinstated). In exchange, employee agrees to:
– Comply with a set of conditions and employer expectations; and
– Accept without recourse certain job-specific consequences (usually
termination) in the event of violation of the conditions or
expectations.
Relevant Characteristics of Mental Disorders
Mental Disorders tend to be vague, complex, variable and not well understood.
Mental Disorders are frequently hidden (not evident on casual observation). Rather, the nature and severity of a mental impairment is an inference from observations of behavior coupled with subjective reports by the individual and/or third party observations.
Frequently, a mentally impaired individual suffers from more than one mental condition, each with its own symptoms, treatment requirement, and course.
Mental impairments are not typically cured but are rather controlled, often using medication and/or therapy, and many mental impairments wax and wane, sometimes unpredictably, over a person’s lifetime, with or without treatment.
Relevant Characteristics of Mental Disorders (2)
Treatment for mental impairments often involves use of medication and counseling/therapy. Effectiveness of these methods varies considerably from one person to another. Often medications themselves cause risk. Some have side effects that are unpleasant to the individual, and others are sedating, concentration-impairing or otherwise create risks.
The nature, periodicity and the level of risk created by a mentally impaired LEO is unpredictable with any precision. Predicting the course of a mental impairment very often entails a number of unknown and uncontrollable phenomena, such as whether a person is in treatment, the nature of the treatment, compliance with treatment, and so on.
Some unfit officers have impairments that can be realistically brought under control such that they are able to perform their job safely and effectively.
Why should the FFD psychologist be involved in the process of developing a
RTW Agreement for an officer who is found to be unfit for duty?
1. Agencies seeking to accommodate officers with mental impairments typically require information on what it would take to get the officer back to work. This information invariably requires professional input.
A. Mentally unfit LEO’s may be entitled to accommodation; and/or
B. Department seeks to salvage LEO regardless of its legal mandate.
2. Safely and effectively returning an LEO with a mental impairment to full duty is typically complex psychological risk management requiring professional input.
A. Nearly all examples of accommodation from EEOC and JAN refer to changes in structure (e.g., blinders for distractible individuals with ADHD), technological changes (e.g., use of recording equipment to tape meetings), or certain changes in practice (e.g., allowing time off for therapy, assigning person to certain shifts).
B. In FFD cases involving a LEO, such accommodations are often irrelevant, as it is the employee, and not the workplace, that must change. Thus, In a strict sense, most mental impairments in law enforcement settings cannot be accommodated by adjusting the workplace.
3. LEO’s with mental impairments tend to create a risk for the Department.
Examples:
– LEO with depression and anxiety who is tired and can’t concentrate=> patrol car accidents, judgmental errors, etc.
– LEO who is agitated, loses his temper, projects hostility, etc. => citizen complaints, escalation of conflict, excessive force issues.
– LEO who drinks on days off, which leads to attendance problems => inefficiency, compromising structure, lowering standards (also risk for Dept. from off-duty DUI or other alcohol-related incident – see Bonsignore v. City of NY, 1980)
It follows that, as a condition of being returned to duty, the Department employing a mentally unfit LEO must have confidence that officer’s symptoms that had created elevated risk will not reoccur. Such a determination often requires input from a psychologist who is responsible to the Department and is a specialist in risk management and police psychology.
Why the FFD psychologist be involved in the process of developing a RTW
Agreement for an officer who is found to be unfit for duty (2)
ADA 42 U.S.C. 12112(a) provides as follows:
No covered entity shall discriminate against
a qualified individual with a disability
because of the disability of such individual in
regard to job application procedures, the
hiring, advancement, or discharge of
employees, employee compensation, job
training, and other terms, conditions, and
privileges of employment.
U.S. Equal Employment Opportunity Commission Notice
No: 915.002 October 17, 2002
EEOC Enforcement Guidance
Is an employer relieved of its obligation to provide reason-
able accommodation for an employee with a disability who
fails to take medication, to obtain medical treatment, or to
use an assistive device (such as a hearing aid)?
No. The ADA requires an employer to provide reasonable
accommoda-tion to remove workplace barriers, regardless of
what effect medication, other medical treatment, or assistive
devices may have on an employ-ee's ability to perform the
job. However, if an employee with a disability, with or without
reasonable accommodation, cannot perform the essential
functions of the position or poses a direct threat in the ab-
sence of medication, treatment, or an assistive device, then
s/he is unqualified.
Elements of the Return to Work Agreement (1)
Treatment
Provider qualifications
Provider cooperation
Provider to obtain copy of report
Expectation that officer will comply fully
with treatment
“Amount” of treatment
Time frame for initiation of treatment
Trigger to discontinue treatment
Elements of the Return to Work Agreement (2)
Verification
Attendance at treatment sessions
Compliance with treatment adjuncts
(medication, AA, etc.)
Alcohol agonist paradigm
Bio-testing
Provider to report compliance failures
Provider to provide 6 month letter
Elements of the Return to Work Agreement (3)
Behavioral Conditions of Employment
No alcohol use on or off duty for
duration of tenure with agency
Maintain behavioral/emotional control
No physical violence, threats, etc.
– etc. (compliance with all legal orders, etc.)
Etc. - compliance with all legal orders
acceptable reports
firearms locked in trunk
Elements of the Return to Work Agreement (4)
Return to Work Trigger (Simple Case)
Officer signs RTW Agreement
Officer gives Department completed PROVIDER
COOPERATION FORM verifying:
Appropriate provider qualifications and
Provider’s willingness to cooperate (see form)
Provider receipt of FFD report, RTW Agree-
ment and other forms
Elements of the Return to Work Agreement (5)
Return to Work Trigger (Complex)
Step 1
Restrictions-Characteristics of Step
Non-enforcement/ restricted duty position as assigned
No badge, ID, weapon, uniform, take-home car, arrest power
Parameters
Minimum Time at Step 1 - 4 weeks Maximum - 8 weeks
Requirements to Advance to Step Two
• Signed RTW Agreement;
• Initiated Treatment;
• Presented department with acceptable signed provider
cooperation forms; and
• Satisfactory performance of restricted duty assignments as
determined by the Chief of Police
Elements of the Return to Work Agreement Return to Work Trigger (Complex)
Step 2
Characteristics of Step - Restrictions
•Return to Police Officer position in Field Training capacity
•Arrest authority limited to privileges given to FTO trainees
•No Extra jobs
Time Parameters
Minimum Time at Step ___ weeks Maximum – ___ weeks
Requirements to Advance to Step Two
Ongoing compliance with RTW Agreement
Firearms re-qualification
Completion of ____ shifts with a Field Training Officer (FTO)
with the last 10 consecutive reports indicating a score of ____,
indicating satisfactory performance
Sign-off by FTO
- Officer’s problems made worse.
- Officer alleges violation of rights.
- Establishes pattern of invasive,
obtrusive management
- May incur costs of FFD evaluation
- May not like results of FFD evaluation
- Protects agency against liability risk
- Establishes standard of conduct
- Establishes pattern of hands-on,
proactive personnel management
- May salvage officer or provide
needed help
- Risk of harm to other officers, citizens
- Vicarious Liability (responsibility)
- Could lower hiring, retention stds.
- Morale problems
- No documentation to justify future
personnel actions if problems recur
- You avoid over-reaching or butting into officer’s personal life
- You don’t have to play psychologist
- Odds are good that nothing bad
will happen.
CRITICAL EVENT DECISION POINT
ACTION – SUSPEND OFFICER – FITNESS FOR DUTY EVALUATION ____________________________________
INACTION – NO ACTION OR DISCIPLINE ONLY
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Protects agency against liability risk
Establishes standard of conduct
Establishes proactive personnel management pattern
May salvage officer or provide needed help
Officer’s problems made worse.
Officer alleges violation of rights.
Establishes pattern of invasive, obtrusive management
May incur costs if FFD evaluation
EAP unlikely to provide feedback
CRITICAL EVENT DECISION POINT
TAKE AFFIRMATIVE ACTION
BENEFIT
RISK
You avoid over-reaching or butting into officer’s personal life
You don’t have to play psychologist
Odds are good that nothing bad will happen
No documentation created (fodder for law suit) if problems recur
Risk of harm to officer, other officers, citizens
Vicarious Liability (responsibility) if officer causes harm
No documentation to justify personnel actions if problems recur
Could lower hiring, retention standards
Morale problems - leaves you/others uncomfortable
CRITICAL EVENT DECISION POINT
INACTION – NO ACTION OR DISCIPLINE ONLY
BENEFIT
RISK
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