CSSA Magazine Article – Determining If An Employee Is Fit Or Not Fit For Duty — What Are The Issues?



By: Martin J. Mayer, General Counsel

California State Sheriffs’ Association

California Government Code Section 1031 states, in part, that “(e)ach class of public officers or employees declared by law to be peace officers shall meet all of the following minimum standards: (f) Be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.” (Emphasis added.)

In other words, in order to be peace officer in California, one must be free of any emotional or mental condition which interferes with his or her ability to carry out the duties of a peace officer. Under general theories of supervisory responsibility, it is incumbent upon police chiefs and sheriffs to insure that officers meet these standards at all times.

However, the American with Disabilities Act (ADA) prohibits an employer from making inquiries about an employee’s medical condition, unless there is justification and the inquiry is job related and a business necessity. As such, the ADA does not prevent an employer from requiring an employee to undergo a “fitness for duty” (FFDE) evaluation, of either a physical or psychological nature, when it is justified and related to his or her job.

Is A Fitness For Duty Evaluation A Subject Of Collective Bargaining?

Under most circumstances, it is the employer’s decision and obligation to order a FFDE and that decision is not subject to bargaining or, in California, to the meet and confer process. Inclusion of such a provision in a labor/management agreement would be a significant restriction on the employer’s obligation to insure employees are fit for duty.

A situation involving that issue was recently decided in the state of Ohio in Stow Firefighters, IAFF Local 1662 vs. City of Stow, 2011 Ohio 1558, 2011 Ohio App. LEXIS 1370. After suspending firefighter Rod Yoder for harassing behavior, and acting discourteously, disrespectfully and unprofessionally towards a member of the city’s park department, the city ordered him to submit to a fitness for duty evaluation (FFDE).

While he was on paid leave, the IAFF filed a grievance on his behalf arguing, among other things, that the city acted unreasonably by placing him on paid leave pending the FFDE, and that there was no justification for ordering the evaluation. The union also argued that referral for a FFDE was a subject of collective bargaining.

The Appellate Court stated that “the plain language of the agreement seems to indicate that the city has reserved for itself the right to evaluate its employee’s fitness for duty. The union has not pointed to any term or provision of the Collective Bargaining Agreement that modifies the city’s reserved right to order an employee to submit to a fitness for duty evaluation so as to subject disputes regarding such evaluations to arbitration.”

“Not Fit For Duty” Doesn’t Necessarily Mean Psychologically Unfit.

Following her involvement in heated arguments with other members of the Bridgeport Connecticut Police Department, Ms. Eaddy went home feeling “stressed out” and checked herself into a hospital for a short period of time. Following her hospitalization, Police Chief Bryan Norwood ordered her to undergo a fitness for duty examination.

The case of Eaddy vs. City of Bridgeport, 2011 U.S. Dist. Lexis 39853, turned on an argument about whether Ms. Eaddy was “regarded as” disabled?” The Court noted that “the first question in this case is whether the defendant perceived Ms. Eaddy as having an impairment that caused her to be substantially limited in (a) major life activity?” If she was so perceived, the ADA would be of significance.

However, in reviewing her arguments, the Court stated that “the fact that Chief Norwood described Ms. Eaddy’s behavior as “irrational, irate, and uncooperative, as well as paranoid” in his letter to the Civil Service Commission is not evidence that he viewed her as having a disability under the terms of the ADA. There is no indication in Chief’s Norwood’s letter that he was using the terms “irrational” and “paranoid” in a clinical sense.”

“Permanent” Light Duty Assignments For Disabled Employees Can Create Serious Problems.

In the case of Cuiellette vs. City of Los Angeles (2011) 194 Cal. App.4th 757, the California Court of Appeal held that “the primary issue was whether or not the employer had an obligation to provide permanent light duty assignments and, under both ADA and FEHA, such an obligation did not exist. However, if such assignments existed already, a burden was placed on the employer to reasonably accommodate the employee if possible.”

“If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available.” The Court notes that “the employer is not required to create new positions or “bump” other employees to accommodate the disabled employee. What is required is the duty to reassign a disabled employee if an already funded, vacant position at the same level exists.”

In the Cuiellette case, the evidence proved that the city maintained several permanent “light duty” assignments and filled the assignments with sworn officers whose disabilities prevented them from performing the otherwise essential functions of a sworn police officer. Cuiellette had held one of those assignments and was capable of performing all the essential function of that job, therefore, he had to be accommodated by allowing him to continue in that assignment.

The Court of Appeal held that “because the L.A.P.D. maintained permanent, light duty positions that it staffed with police officers who could not perform all of the essential duties of a police officer, the relevant inquiry is whether the plaintiff was able to perform the essential duties of a light duty assignment he was given on his return to work and not whether he was able to perform all of the essential duties of a police officer in general.”


Fitness for duty evaluations are not only permitted, but depending on the circumstances, they may be obligatory. If an employer has reason to believe an employee is not fit for duty, and this applies to all employees, not just peace officers, depending on the work that employee performs, the employer may be required to ascertain the person’s fitness for duty. Obviously, the more hazardous and/or dangerous to others the job may be, the more necessary is the evaluation.

It is of utmost importance that employers retain the authority to order a FFDE when justified, and not agree to any provision in an MOU which restricts its ability to order such an examination. Under ADA, as noted above, the employer is obligated to articulate a basis for a FFDE and it is important for the employer to avoid using medical terms to describe the behavior of the employee. The employer should set forth the factual basis for the referral, and let the doctor define the appropriate medical terminology, if it exists.

As noted in the Eaddy case, a determination that an employee is not fit for duty does not always mean it is a medical problem. It could be, for example, a personality disorder or merely a behavioral problem on the employee’s part.

Finally, no matter how “humanitarian” the rationale for permanent light duty positions might appear to be, the establishment of such positions will create significant problems for the employer. In addition to the fact that they are not required under ADA of under FEHA, assignment of an employee to a light duty position means that he or she is unable to perform the functions they were hired to perform and for which they are being compensated. It also means that another employee will be needed to perform that job and, in essence, two people will be paid to fulfill one role.

As with all legal issues, it is imperative that advice and guidance be secured from an employer’s legal advisor before taking action which could result in litigation.

Martin J. Mayer is a name partner in the public sector law firm of JONES & MAYER, and has served as the CSSA General Counsel for more than 25 years.