International Assn.
of Chiefs of Police
Legal Officers Section & Police Psychological Services Section
2001 Conference materials
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Legal Update for
Police Psychologists
International
Association
of Chiefs of Police, Inc.
Police Psychological Services Section
Annual Conference Toronto, Ontario
Oct. 28, 2001
Recent articles from the
Fire and Police Personnel Reporter
Presented by
Wayne W. Schmidt, Editor
aele@aol.com
AELE Law Enforcement Legal Center
www.aele.org/
CONTENTS
Psychological Exams and Standards
Stress Related Claims and Defenses
Federal court in Philadelphia allows a local governmental employer to order a confirming exam for a worker returning from FMLA leave. There was a history of requiring such exams, and the bargaining agreement perpetuated recognized past practices.
A 23-year veteran civil service employee was fired for refusing to take a confirming exam, after returning from a two month FMLA leave. Her physician had provided certification that she was fit to resume her employment, but she was to avoid drafts and stressful working conditions
The court dismissed her FMLA based suit for reinstatement. Federal law generally requires employers to consult the employee's physician, rather than to seek a confirming examination. 29 C.F.R. §825.310(c). The court in this case said there is an exception where the return-to-work procedures are established or preserved in a collective bargaining agreement (CBA).
The FMLA allows a CBA to establish its own procedures for an employee's return to work, and these procedures can supersede those of the FMLA. 29 U.S. Code §2614(a)(4). The Supreme Court has held that the parties' past practices are implied terms of a CBA. Conrail v. Railway Labor Exec. Assn., 491 U.S. 299, at 311-12 (1989).
Management believed her medical certification was unclear and confusing. Township officials consistently applied the same independent examination procedure in 26 prior situations where an employee's medical certification was unclear or confusing. That history became a part of the CBA.
Although the FMLA's substantive protections cannot be undermined by a CBA, the judge note that the FMLA simply entitles an employee to resume her employment. "It does not, however, ensure a particular administrative procedure for returning to work." Conroy v. Township of Lower Merion, #00-CV-3528, 2001 U.S. Dist. Lexis 11460 (E.D. Pa.).
Text: www.paed.uscourts.gov/documents/opinions/01D0641P.HTM
Arbitrator reinstates a state employee whose driver's license was suspended for DUI, where he suffered from major depression. He should have been placed on FMLA leave even though he did not request leave. Management had a "duty" to see if the grievant's illness qualified for FMLA and to assist him in his recovery and continued employment.
A state transportation employee had his driver's license revoked for driving under the influence of alcoholic beverages. He also suffered from episodic depression. His superiors terminated him, and the union grieved.
The arbitrator noted that "an employee may be shielded from discipline even though it was his own behavior that lost him his driving privileges" provided that he takes unpaid leave time to recover and the absence does not put an undue burden on the employer.
He said that if an employee is legitimately ill, an employer's refusal to grant sick leave denies the employee a contractual right. He found that the major depression suffered by the grievant was a "serious health condition" as defined under the FMLA.
The arbitrator said that management treated the situation as a loss of license for behavioral reasons, and ignored the underlying medical condition. The fact that the grievant did not seek FMLA leave and extended unpaid leave was fully excusable.
Management was aware that the grievant "had severe depression requiring hospitalization and an inability to return to work for a month." The arbitrator said:
... this information raised the issue of a FMLA-qualifying event. It was incumbent upon the Employer to make a determination as to whether the grievant's illness qualified for FMLA or to inquire further. The Grievant may be excused from applying for FMLA or sick leave through the usual administrative procedure because... he had been told ... that sick leave was not allowed ... for loss of license.
He concluded that the grievant should have been offered medical leave and was removed without just cause. Ohio Dept. of Transportation and Ohio Civ. Serv. Employees L-11, Case #31-01-00309-08-01-06, 115 LA (BNA) 563 (Smith, 2001).
» Note: Twice in two years, the grievant was arrested for DUI, refused to take a breath test, and was ultimately convicted. He had been twice referred to Employee Assistance Programs and participated both times. He also had been disciplined twice before, including a "last chance" agreement (which presumably expired).
Nevertheless, the arbitrator required management to look beyond his behavioral problems and to actively assist in his recovery and return to full duties.
HHS releases standards for protecting the privacy of medical records and health information maintained by health care providers, hospitals, insurers, and clearinghouses.
The regulation was mandated by Congress after it failed to pass comprehensive privacy legislation. The new standards limit the nonconsensual use and release of private health information; restrict most disclosure of health information to the minimum needed for the intended purpose; and establish new criminal and civil sanctions for improper use or disclosure.
Law enforcement will have access to records with an administrative subpoena or summons, and will not have to go to court as some advocates would have liked. The regulations also impact on inmates in jails, detention centers and other correctional facilities. HHS Standards for Privacy of Individually Identifiable Health Information: 45 Code of Fed. Reg. §160.101-312.
Text: www.hhs.gov/ocr/hipaa/
FLRA holds that management did not commit an unfair labor practice when it ordered a military safety officer to undergo drug testing and psychiatric evaluation after he made threatening remarks concerning a sergeant.
A 20-year employee who was the union local's safety officer told a supervisor that a staff sergeant was "a stupid son-of-a-bitch and I'd like to shoot him in the back of the head with a rivet gun." The supervisor reported the comments; management bared the grievant from the premises and ordered him to take a psychiatric evaluation and urinalysis.
The union filed ULP charges. A federal administrative law judge held that the employer had legitimate security concerns and that the management could not simply ignore the threat. The Federal Labor Relations Authority affirmed the mandatory psychological review and drug test, 3-to-0.
"Removing [the grievant] from contact with the subject of his threat had an obvious, plausible connection with safety and security concerns of management." Management's action in "ordering psychological and drug testing also were appropriate responses to [his] rivet-gun threat ..." Air Force, 437 Wing and AFGE L-1869, #AT-CA-90669, 56 FLRA No. 160, 2000 FLRA Lexis 181, 39 (1893) G.E.R.R. (BNA) 47 (11/30/00).
Text: www.flra.gov/decisions/v56/56-160ab.html
Federal judge rejects a suit that claims that the plaintiffs' fitness-for-duty exams violated the Fourth Amendment; the sole remedy was an administrative appeal.
A federal court in Sacramento has dismissed a suit filed by two former Deputy U.S. Marshals. They claimed that the Marshals Service violated their rights to be free from unreasonable searches by requiring them to undergo fitness-for-duty examinations, in order to return from extended time off without pay.
One of the plaintiffs also alleged the Marshals Service gave false information about him to a sheriff's dept. when he applied for a job there.
Judge Edward J. Lodge ruled that their sole remedy for any abuses lie within the Civil Service Reform Act. David Orsay and Michael Smith v. Jerry J. Enomoto, U.S. Marshal, (E.D. Cal. 2000) not reported in Lexis or Westlaw; summarized in the Sacramento Bee (9/20/2000).
Officer who suffered PTSD from a shooting loses her suit challenging management's decision to temporarily assign her to administrative duties and order a psychological exam.
In 1993 a suburban police officer shot a suspect. Later, she suffered post-traumatic stress disorder and atypical depression with panic attacks. She resumed full duty after counseling, but in 1997 she underwent simulated shooting exercises using videotaped scenarios on a large screen.
She began crying, had chest pains and difficulty breathing. She handed her simulation weapon to the range officer, and did not complete the exercise. After an evaluation and temporary staff duty, she again returned to patrol service.
She filed suit alleging that management violated the ADA and Title VII because of her PTSD and gender. She complained of being placed on administrative duty and required to take a psychological exam. She also claimed that she was harassed repeatedly by three officers while on administrative duty.
The Village said the plaintiff was not disabled or regarded as disabled and suffered no adverse employment action, and was not subjected to a hostile working environment or gender discrimination. The court noted that there was no evidence that other officers displayed similar reactions or serious emotional outbursts.
The court found that the Village acted reasonably in placing her on administrative duty with all benefits, promptly arranged a psychological exam for her, and returned her to patrol duty shortly after learning that Davis was fit for duty.
As for the harassment, she failed to report it and offered no valid reason for not reporting it. The Village was entitled to a summary judgment on all counts. Davis-Durnil v. Vil. of Carpentersville, #98 CV 7618, 128 F.Supp.2d 575, 2001 U.S. Dist. Lexis 918 (N.D. Ill.).
Text: www.ilnd.uscourts.gov/racer2/load_page.cfm?dp=4437032&dn=48&cn=1:98-cv-7618
Appeals court affirms award to whistleblower who suffered anxiety disorder after reporting corrupt practices.
The N.Y. Workers' Comp. Board awarded disability benefits to a state auditor for "anxiety disorder, mixed spectrum," arising from "a continuing course of harassment" for six years following his report of corruption. Among other things, he was permanently assigned to a night shift, although no other accountants work a night shift.
A four-judge appellate court affirmed the award. The claimant could not move an arm and leg and had problems with his chest, head and neck. There was sufficient evidence he had suffered "an accidental injury due to excessive work-related stress." Abdallah v. N.Y. City, #86031, 279 A.D.2d 723, 719 N.Y.Supp.2d 198, 2001 N.Y. App. Div. Lexis 248, 2001 NYSlipOp 00250 (3rd Dept. 2001).
Pennsylvania denies stress claim to officer who attended to two officers who were shot, and suffered from PTSD.
A Philadelphia police officer helped carry one of the officers; one later died from gunshot wounds, the other was paralyzed. He began to suffer emotional problems including nightmares and domestic difficulties.
In Pennsylvania, to receive workers' compensation for a mental injury, a claimant must experience "abnormal" working conditions. However, the courts hold police officers to a higher standard because stressful situations are part of their job. See our prior article at 1999 FP 172-3.
At his compensation hearing, his expert testified that he could not return to police work because of post-traumatic stress disorder. Despite the fact that seven different officers testified that the events he experienced were extraordinary, the appellate court denied his claim. Rydzewski v. W.C.A.B., (Philadelphia), #856 C.D. 2000, 767 A.2d 13, 2001 Pa. Commw. Lexis 16.
Text: www.courts.state.pa.us/opposting/cwealth/out/856cd00.pdf
Appeals court reinstates an ADA lawsuit of an ex-sergeant who shot up her father's grave, inflicted wounds on herself, and overdosed on drugs. Sheriff failed to consider her reemployment for any jobs in the department.
A sergeant with a Wyoming Sheriff's Dept. suffered from post-traumatic stress disorder related to childhood sexual abuse by her father. She fired six rounds her father's grave, made serious self-inflicted wounds and overdosed on drugs, requiring several hospital visits. When her sick leave expired, she resigned to seek psychological care.
After a course of medication and therapy, her attending physician, sent the Sheriff a letter stating she could return to work. Despite her ten years of experience, she was refused employment for any position in the department because of liability concerns.
The U.S. District Court dismissed her complaint, but an appellate panel has reversed. Under the EEOC's interpretive guidelines, if an individual can show that a potential employer refused to hire her based on myth, fear, or stereotype, including concerns regarding safety, insurance, liability, and acceptance by coworkers and the public, the individual will be "regarded as" disabled. 29 C.F.R. 1630 app. §1630.2(l).
The Sheriff's refusal to consider her for less sensitive posts, such as process server or jailer, affected her ability to work in an entire class of jobs, not merely in the particular job of patrol officer. The conclusion that an individual is unqualified because she poses a direct threat must be based on an individualized assessment and a medical judgment. 29 C.F.R. §1630.2(r).
The plaintiff "submitted sufficient evidence for a reasonable jury to find that she was qualified for a position within the Sheriff's Office, that she had a record of impairment or that the defendant regarded her" as impaired. That "is precisely the kind of dispute traditionally resolved by a jury, not by a court at the summary judgment stage." McKenzie v. Dovala, #99-8084, 237 F.3d 538, 2001 U.S. App. Lexis 3844, 11 AD Cases (BNA) 936 (10th Cir.).
Text: www.kscourts.org/ca10/cases/2001/03/99-8084.htm
Kentucky allows PTSD benefits for a police officer who shot a mentally deranged man who assaulted them with a knife. Pennsylvania disallows similar claims by an officer who endured a long standoff with a mentally disturbed man with a loaded firearm. The Kentucky officer also was physically assaulted, the Philadelphia officer was not. A "confrontation with an armed suspect may be anticipated in the course of an officer's duties."
In Lexington, Kentucky in 1989, pair of police officers approached a man who was screaming threats in the middle of a street; he turned and attacked them. The man produced a knife and stabbed one officer. The other drew her weapon and fired three shots, killing the man.
Nearly a decade later, the shooting officer began to suffer severe hand tremors and an intolerable level of anxiety. She was given a disability retirement and applied for worker's comp. benefits. Initially, the claim was disallowed because of the time period between the event and the disability, and a finding that her psychiatric trauma was not accompanied by physical injuries.
That holding was reversed by the Compensation Board, and the employer appealed. An appellate court has affirmed the award, because her stress-related injuries originated with a work- related physical injury. The claim was not barred by the statute of limitations because of a series of continuing traumas continuing until her disability retirement.
The appellate panel said that post-traumatic stress disorder syndrome qualifies as a harmful change to the human organism. Since her "harmful psychiatric, psychological, and stress- related change is traceable to the 1989 assault and subsequent work-related traumatic events, we believe the totality of the evidence also compels a finding of proximate causation." Lexington-Fayette Govt. v. West, #1999-CA-002462, 2000 Ky. App. Lexis 109.
Text (free registration required): www.lexisone.com
In Pennsylvania, however, the Supreme Court unanimously reversed a lower court decision granting a Philadelphia officer benefits for the PTSD he suffered as the result of a six minute stand-off with an armed suspect.
The officer was angered when all charges against the man were dropped. He was overcome with severe anxiety and stress, and was convinced he was either going to die or was going to have to kill someone. Two doctors later diagnosed PTSD.
The Pennsylvania justices found that the officer's involvement in a standoff with an armed suspect "did not rise to the level of abnormal working conditions for a police officer." He was "performing the investigatory and patrol functions expected of a law enforcement officer, and a confrontation with an armed suspect may be anticipated in the course of an officer's duties." Philadelphia (City of) v. Civil Serv. Cmsn. (Ryder), #55-EAP-1999, 772 A.2d 962, 2001 Pa. Lexis 1083.
Text: www.courts.state.pa.us/opposting/cwealth/opinions/0598pdf/v40lde63.pdf
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