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

Thanks for your attention

Additional slides that may be

needed

- 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