Workplace Violence Prevention: A Practical Guide to Security on the Job

Sample Workplace Violence Prevention: A Practical Guide to Security on the Job

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Workplace Violence Prevention: A Practical Guide to Security on the Job

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Workplace Violence Prevention: A Practical Guide to Security on the Job

A guide that thoroughly examines the many levels and types of workplace violence prevention, and how to deal with the issue systematically

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Users of This Guide Include

• HR personnel • Security officers • Risk managers • Anyone responsible for

preparing an organization to respond to potential violence

• Organizations dealing with the threat of violence or recovering from its effects

• And many more…

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Features of This Guide

• Details the elements of a Comprehensive Workplace Violence Prevention Plan

• Covers specific sectors such as retail, health care and schools

• Shows how to incorporate prevention strategies into the workplace

• Includes case studies

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Features of This Guide

• Includes supplements from agencies and professional organizations

• Lists regulatory citations and professional sources

• Provides implementation checklists that give step-by-step guidance

• Places violence prevention in the context of compliance responsibilities and potential liabilities

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Comprehensive Topic Areas

• Bomb threats • Conducting threat

assessments • Domestic violence • Guarding against terrorism • Harassment prevention • Keeping your mailroom safe • Managing layoffs • Planning security for your

premises

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Comprehensive Topic Areas

• Sabotage • Screening job applicants • Training employees • Who might perpetrate

violence? • Worker safety and health

requirements • Working alone

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Features – Workplace Violence Prevention Plan Guidance

Offers guidance on designing the plan and assigning appropriate roles to professionals within the organization

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Sample Workplace Violence Prevention Plan Guidance

Tab B Chapter 4

DEVELOPING A THREAT ASSESSMENT TEAM

By James S. Graves, Ph.D., Psy.D.

ABSTRACT

This chapter describes Threat Assessment Teams (TATs), which employers can develop⎯using in-house and/or contracted expertise⎯in order to assess and take action on threatening or dangerous situations that can arise in their workplaces. The chapter discusses the potential benefits of TATs, and how to develop and staff them.

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Features – Supplements

Provide useful reference material from agencies and professional organizations

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Sample Supplement

DOSH DIRECTIVE Department of Labor and Industries Division of Occupational Safety and Health Keeping Washington safe and working

5.05 Violence in the Workplace

(Updated) Date: November 5, 2010

I. Purpose

This directive provides guidance to DOSH staff on the appropriate application of WISHA standards in workplaces where there is an increased risk of violent incidents.

II. Scope and Application This directive applies to all DOSH operations statewide. It replaces all previous instructions on this issue, whether formal or informal.

III. References Chapter 296-832 WAC, Late Night Retail Worker Crime Prevention DOSH Compliance Manual NIOSH Occupational Violence web resources http://www.cdc.gov/niosh/topics/violence/

IV. Background

A. Violence in the workplace is a major contributor to occupational fatalities and injuries. From 2000 to 2005, an average of 6 Washington workers died each year as a result of workplace homicide, and from 2000-2005 there was an annual average of 2,094 industrial insurance claims for assault and violence-related incidents. Recent years have shown some reduction in the number and rates of violence-related injuries, but homicide remains the fifth highest cause of workplace fatalities in Washington State. Washington's unique Late Night Retail Worker Crime Prevention standard appears to have prompted a reduction in violent crimes within its scope, but that scope is limited to a select group of retail businesses.

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Features – Regulatory Citations and Professional Sources

Provide avenues for further research and are cross-referenced to discussions within the guide

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Sample Regulatory Citations and Professional Sources

b. Prohibiting weapons at work

You also should consider a formal policy prohibiting weapons in the workplace, either within your workplace violence policy or separately. For example, the U.S. Postal service prohibits “firearms, other dangerous or deadly weapons, or explosives, either openly or concealed … on postal property.”1 B-3 Supplement 2 provides a more detailed example. These policies have become more common in recent years—in November 2006 the Society for Human Resources Management published the results of a national survey indicating that 64% of employers have formal workplace weapons policies.2 Some research suggests that having no-gun policies reduces the likelihood of workplace homicides, although the methodology is controversial.3

Whether or not you can enforce such a policy depends on the law in your jurisdiction. In the U.S., most states defer generally to employers’ rights to regulate their own workplaces.4 However, in recent years, more states have expanded people’s ability to carry concealed weapons.5 In addition, the National Rifle Association (NRA) is undertaking a major national campaign to enact prohibitions against employers’ efforts to ban employees from keeping guns locked in their automobiles (often referred to as “parking lot laws”), based on a law enacted in Oklahoma with NRA support.6 As of this writing, the current version of the Oklahoma law has been upheld by the Tenth Circuit Court of Appeals,7 and a federal District Court has upheld the Florida law.8 These laws are being adopted in more states, including most recently Maine (effective September 28, 2011).9

The scope of laws allowing guns at work may be expanding. Note that, effective July 1, 2011, Indiana has expanded its parking lot law to make it illegal for employers to require disclosure of gun ownership or to condition employment on an agreement to forgo any rights relating to guns or ammunition.10

1 39 C.F.R. § 232.1(l). 2 SHRM, “2006 Weapons in the Workplace Survey Report” (November 2006). This report is available on SHRM’s Internet site at

www.shrm.org. 3 See, e.g., Dana Loomis, “Preventing Gun Violence in the Workplace” (2008). This report is available on the Internet site of the ASIS

International Foundation, which was one of its sponsors, at www.asisonline.org/foundation/noframe/default.html. 4 For two examples of decisions upholding employers’ right to terminate employees for violations of employer’s No Guns at Work

policy, see., Hansen v. America Online, Inc., 96 P.3d 950 (Utah 2004), Plona v. UPS, 558 F.3d 478 (6th Cir. 2009). 5 For a review of these state laws, see, GAO, “Gun Control – States’ Laws and Requirements for Concealed Carry Permits Vary across

the Nation” (GAO-12-717) (July 2012).

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Features – Implementation Checklists

Help users to integrate concepts covered in the chapters into their organization

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Sample Implementation Checklists

IMPLEMENTATION CHECKLIST

1. Investigate the range of available reporting systems.

Yes No

Has the organization chosen the reporting system that suits it best? ❏ ❏

Has the organization chosen the “report to supervisors” model? ❏ Do employees know how to report concerns? ❏ Are supervisors familiar with their responsibilities concerning reports?

❏ ❏

Has the organization chosen the “report to the TAT” model? ❏ Do employees know whom to contact? ❏ Is the TAT prepared to receive reports?

❏ ❏

Has the organization chosen the “internal hotline” model? ❏ Has staff been obtained? ❏ Has staff been trained? ❏ Has a location been obtained? ❏ Have supplies been procured? ❏ Do employees know where to call and the hours of operation?

❏ ❏

Has the organization chosen the “external hotline” model? ❏ Has an external vendor been selected? ❏ Do employees know where to call?

❏ ❏

2. Incorporate design elements appropriate to your organization and its needs.

Has the organization addressed the inherent access problems? ❏ Is the system easily accessed? ❏ Is there adequate coverage? ❏ Is there adequate equipment?

❏ ❏

Has the organization determined who can make reports? ❏ ❏

Has the organization established whether reporting is mandatory or voluntary? ❏ ❏

Has the organization established whistleblower protections? ❏ ❏

Is there a clear understanding of what will be done with information that is reported and who will have access to it?

❏ ❏

Has the organization determined how to handle false reports? ❏ ❏

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Formats

• Online single-user • Online multi-user • Loose-leaf • CD • Loose-leaf & CD

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Up to 4 updates per year

Sample Release Notes

Workplace Violence preVentiona practical Guide

Release #139

August 2012

neW and noteWorthy

• The Equal Employment Opportunity Commission (EEOC) has issued new guidance summarizing restrictions on employers’ review of applicants’ criminal records requirements, and recommending Best Practices. See Tab C Chapter 1.

hiGhliGhts of this release

• Workplace violence statistics have been updated. See Tab A Chapter 1.

• The U.S. Supreme Court has struck down most of Arizona’s latest effort to regulate undocumented immigrants (SB 1070). See Tab C Chapter 1.

• Discussion has been added regarding employers’ use of applicants’ social media postings and activities. See Tab C Chapter 1.

• Ontario’s regulators and courts continue to evaluate how Bill 168’s provisions requiring workplace violence prevention efforts affect workplace discipline efforts in the province. The latest ruling penalizes an employer for firing an employee after a single incident involving another employee. See Tab C Chapter 3, Tab K Chapter 3.

• Canada has embarked on additional national security programs. See Tab D Chapter 2.

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Please enjoy this sample of Workplace Violence Prevention: A Practical Guide to Security on the Job

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Tab E Chapter 4

PSYCHOLOGICAL FITNESS FOR DUTY EVALUATIONS

By Jon F. Elliott, J.D.

ABSTRACT

When an employer becomes concerned that an employee may be incapable of performing his or her job, one response is a formal evaluation of that employee’s “fitness for duty.” Fitness for duty (FFD) evaluations may be conducted periodically (for example, annual medical fitness reviews for fire fighters), or as a step before an employee returns to work after an injury or illness that may leave residual limitations.

In addition, an employer may order a psychological FFD evaluation, to determine whether an employee has a psychological impairment that makes him or her unable to perform effectively and safely. An employer may order a psychological FFD evaluation when an employee is exhibiting signs of psychological or emotional stress, including those that manifest in hostile or threatening behaviors, or in other behaviors that lead co-workers or the employer to be concerned for their safety.

This chapter discusses procedures for making referrals and responding to the results of evaluations. It also provides guidance in establishing policies regarding psychological FFD evaluations, and selecting FFD evaluators.

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An employer may refer an existing employee for a psychological FFD evaluation when the employee’s behavior creates:

• a reasonable basis for concern that the employee may be unable to perform the essential functions of his or her job effectively or safely; and

• the impairment appears to be psychological or mental.

This two-pronged test is defined by the Equal Employment Opportunity Commission (EEOC) to comply with the Americans with Disabilities Act (ADA).1 Concerns for workplace effectiveness and safety include concerns that the employee may pose a risk of workplace violence.

A. Psychological FFD: The Evaluation Process

The central purpose of a psychological FFD evaluation is to determine whether a subject employee is able to safely and effectively perform his or her essential job functions. There is general agreement that a psychological FFD evaluation process involves the following elements:

• Objective and reasonable evidence indicates that an employee may be unable to perform essential job functions safely and effectively.

• There is a reasonable basis for believing that the situation results from psychological factors.

• Referral is a formal process, involving informed consent by the employee.

• The evaluation is a formal, specialized examination of the employee by a qualified professional.

• The evaluation is produced for the direct benefit of the employer, rather than for the immediate therapeutic benefit of the subject employee.

1 42 USC § 12112(d); 29 CFR §§ 1613(b), 1614(c). See “EEOC Enforcement Guidance on the Americans with Disabilities Act and

Psychiatric Disabilities” (March, 1997), Question No. 14. This document appears as K-2 Supplement 1 to this Guide.

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1. What is a psychological FFD evaluation?

Stated simply, the purpose of a psychological FFD evaluation is to assess whether the employee has a psychological problem; and if so, whether that problem renders him or her unfit for duty. To address this question, such FFD evaluations incorporate multiple methods and data sources, which typically include the following:1

• review of background information (e.g., personnel records, medical records, incident reports or memos);

• review of the employee’s job description or other materials that allow the evaluator to assess the essential functions of that job;

• psychological testing of the subject employee, using appropriate assessment instruments (e.g., personality, cognitive, motivational, behavioral, and/or specialized);

• additional testing when appropriate (e.g., drug testing);2

• comprehensive, face-to-face clinical interview(s), in which the employee presents his or her views and feelings about the situation, and the evaluator assesses the employee’s behavior, mental status, and symptoms;

• collateral interviews with relevant third parties;3 and

• referral to, and consultation with, additional specialist(s) if necessary.

2. What situations may trigger a psychological FFD evaluation?

FFD evaluations necessarily affect the subject employee’s continuing employment in an organization, and necessarily intrude on his or her privacy. The ADA allows for psychological FFD referrals only when there is an “objective and reasonable” basis for the concerns about the employee’s effectiveness or safety, derived not just from speculation about the employee’s state of mind, but from direct observations, credible third-party reporting, or other reliable evidence.

1 This listing is derived from an extensive discussion provided in Anthony Stone, Fitness for Duty: Principles, Methods, and Legal

Issues (CRC Press LLC, 2000). 2 For an example of an approach that includes extensive attention to possible alcohol and drug use, and more generalized concern for

“stress,” see regulations defining FFD programs imposed by the U.S. Nuclear Regulatory Commission (NRC) on licensed nuclear power plants. (10 CFR part 26).

3 Before conducting collateral interviews of third parties, the evaluator should obtain informed consent from the employer, the examinee, and/or the third party, as appropriate. This should include, at a minimum, explanation of the purpose of the interview, how the information will be used, and any limits to confidentiality.

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Unfortunately, no clear standard defines when a situation provides “objective and reasonable” cause for concern. Obviously a physical attack meets (or exceeds) this threshold. What about muttered threats—in a single incident or repeatedly? Is it enough that co-workers have become fearful?1 An employer’s best recourse is to have in place employee reporting procedures to inform a Threat Assessment Team (TAT) of threatening situations (if you have no TAT, reporting might go to Human Resources, or to Security). Such a system should establish before-the-fact patterns of behavior that can be accepted as “objective and reasonable” evidence. Triggering events and reporting procedures are discussed at length in Tab C Chapter 6 and Tab E Chapters 1 and 2, and TAT investigations and responses are discussed in Tab E Chapter 3.2

Keep in mind that an FFD evaluation is not a substitute for disciplinary action. The employer should have established, articulated, and implemented performance management and progressive discipline systems, designed and used to respond to most performance and disciplinary problems.3 Performance problems where no psychological cause is suspected should not be considered triggers for a psychological FFD evaluation. Such FFD evaluations are appropriate only for those special situations in which questions about the target employee’s mental health raise safety concerns.4

Employers must also consider the subject employee’s legal rights. FFD evaluations impinge on the target employee’s expectations of privacy and freedom from possible disability-based discrimination.5 Also, if an FFD is undertaken to clear an employee for return to work after leave for a “serious medical condition” (including a mental one), then the U.S. Family and Medical Leave Act (FMLA) or state or provincial medical leave acts may apply.6 An employer

1 Fearful co-worker reactions to an employee might be harmful to the effective functioning of the workplace even if “objective and

reasonable” analysis would not produce these reactions. These situations might call for broader counseling or other interventions. 2 The employer must also ensure that TAT members (or other in-house personnel or outside consultants) are trained to evaluate

situations and evaluate threats. 3 Employee discipline is discussed in Tab C Chapter 3. 4 Note, however, that some organizations neglect this distinction and do use FFD referrals as alternatives to disciplinary proceedings.

This (mis)use complicates responses to evaluators’ reports: what is an employer to do after confirming that a problem employee is not suffering from debilitating psychological problems?

5 The ADA and Canadian laws prohibit discrimination based on disabilities, including mental and psychological impairments. These laws do not prohibit psychological FFD evaluations and courts have allowed them even on a “preemptive” basis in situations where an employee’s performance creates questions whether he or she is fit for duty. See, e.g., Brownfield v. City of Yakima, ___ F3d ___ (9th Cir. 2010) (police department justified in ordering preemptive FFD of officer who demonstrated emotional and psychological symptoms). See C-1 Supplement 5 (EEOC, “Disability-Related Inquiries and Medical Examinations of Employees under ADA”), and the broader discussion in Tab K Chapter 2.

6 FMLA allows employers to require an employee’s health care provider to certify the employee’s fitness to return to work, but only with respect to the condition(s) that caused the leave in the first place and in the context of a uniformly applied employer policy. 29 U.S.C. § 2614(a)(4); 29 C.F.R. § 825.312, as revised and recodified effective January 16, 2009 (see 73 Fed. Reg. 67934 (November 17, 2008). Note, however, that EEOC’s FMLA regulation states that this certification need only a simple statement that the employee is able to return to work, which can be required to address the “essential functions” of the employee’s job if the employer provides a formal list of these functions (29 CFR § 825.312(b), as revised). This is far less than a full-blown FFD evaluation report. State and provincial laws and regulations generally include similar provisions.

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who is uncertain whether its observations and concerns warrant a FFD referral may find it useful to discuss them with legal counsel prior to mandating the examination.

3. Making the referral

An employer might respond to a severe event by immediately placing the employee on leave while considering options—including an FFD evaluation. More often, however, the concerns are not this acute, and time is taken for internal investigation and evaluation, which may lead to referral for a formal psychological FFD evaluation.

Once the employer decides to send an employee for a psychological FFD evaluation, information must be collected and sent to the evaluator who is selected, and the employer also must provide notice to the subject employee and obtain his or her consent to the process. These activities should proceed as follows:

The employer’s referral should provide the evaluator with enough information to prepare to undertake an evaluation. This information should include, at a minimum, the following:

• description of the objective evidence giving rise to concerns about the employee’s fitness for duty, including:

—the incident(s) or situation(s) leading to the referral;

—additional information collected or developed during the post-event employer’s investigation (by a TAT or other entity), if one was conducted. This should include information developed in the workplace (employee’s records, co-worker interviews, etc.), as well as any additional background material from outside the workplace;1

• record of the employer’s analysis of the situation in the workplace (e.g., report from the TAT or HR) and decision to make the referral; and

• any particular questions that the employer needs the evaluator to address.

This referral must be documented in writing.2

1 Withholding information (to protect the employee’s privacy, for instance) means that the evaluator will lack potentially important

information, and may lead to an inadequate evaluation. To ensure completeness, the International Association of Chiefs of Police (IACP) has issued FFD guidelines for law enforcement that list a wide range of background and collateral information regarding the employee’s past and recent performance, conduct, and functioning. The information might include “performance evaluations, previous remediation efforts, commendations, testimonials, internal affairs investigations, formal citizen or public complaints, use-of-force incidents, reports related to officer-involved shootings, civil claims, disciplinary actions, incident reports of any triggering events, medical records, or other supporting or relevant documentation related to the employee’s psychological fitness for duty. In some cases, evaluators may ask the examinee to provide medical/psychological treatment records and other data for the evaluator to consider. See IACP, Police Psychological Services Section, “Psychological Fitness-for-Duty Evaluation Guidelines” (2004); available on the IACP Internet site at www.theiacp.org. Readers should note that confidentiality and records management issues might be addressed if the evaluator obtains medical and psychological treatment records directly from the employee, without involving the employer.

2 As one good example of a detailed approach to FFD referrals, see United States Postal Service, “Management Instruction – Fitness-for-Duty Examinations” (EL-860-2000-7) (9/28/00). Although this document is not on USPS’ Internet site, it is available on the Internet site of the National Association of Letter Carriers, at www.nalc.org/depart/cau/manual.html.

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4. Obtaining the employee’s informed written consent

The employer should inform the employee in writing of all of the following:

• a referral for a psychological FFD is being made, and the grounds for doing so;

• details of information that will be transmitted to the evaluator, and the expectation that the evaluator will use that information as a starting point to apply his or her own expertise to conduct the evaluation;

• nature and scope of the evaluation;

• the employee’s status pending completion of the evaluation (e.g., on leave with pay);

• limits of confidentiality, including any information that may be disclosed to the employer without the examinee’s further authorization;

• potential outcomes and probable uses of the examination; and

• other provisions consistent with legal and ethical standards for mental health evaluations conducted at the request of third parties.

Employers typically condition the employee’s continued employment on his or her participation in the psychological FFD evaluation.

The employer must then obtain the employee’s informed written consent to the following:1

• transfer of information from the employer to the evaluator;

• conduct of the psychological FFD evaluation itself, and the employee’s agreement to participate; and

• release of the evaluator’s findings and report to the employer.2

Consent is needed to justify the exception to doctor-client confidentiality provisions that would protect the employee against disclosure of evaluation results.3 Note that this does not mean that the employee is being required to consent in advance to accept the evaluator’s findings or recommendation, or consent to the employer’s response to the findings.

1 Within the United States, information related to FFD evaluations qualifies as “protected health information” under the Health

Insurance Portability and Accountability Act (HIPAA) of 1996, which can only be disclosed with the patient’s authorization. 45 C.F.R parts 160, 162, 164 (“HIPAA Privacy Rule”). Note that HIPAA regulations do not prohibit an employer from conditioning the employee’s continuing employment on providing such authorization. In Canada, consent is required by the Personal Information Protection and Electronic Documents Act (PIPEDA). S.C. 2000, ch. 5. See generally Tab C Chapter 1.E of this Guide.

2 The employee should be informed whether and how he or she will receive a copy of the actual report, or some other communication. 3 Note that most jurisdictions include exceptions making professionals liable for “failure to warn” if a patient poses a clear threat. For

example, California makes psychotherapists liable for non-disclosure after a “serious threat of physical violence against a reasonably identifiable victim or victims.” Cal. Civil Code § 43.92; see, e.g., Calderon v. Glick, 131 Cal.App.4th 224 (2nd App. Dist. 2005).

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5. Evaluation report and recommendations

The evaluator will provide the employer with a written report that contains a description of the initial rationale for the psychological FFD evaluation, the methods employed by the evaluator, and whenever possible a clearly articulated opinion that the examinee is presently fit or unfit for unrestricted duty. The content of the report will be guided by the terms of the employee’s informed consent and authorization, relevance of the content to the employee’s psychological fitness, relevant elements of the employer’s policies and procedures (including any labor agreement), and relevant law.1 The evaluator may find the employee to be:

• fit for duty, with no restrictions,

• fit for duty, but with restrictions or modifications, or

• unfit for duty.

Unless the evaluator finds the subject employee fit for unrestricted duty, the report should contain at least the following information (unless prohibited by law, employer policies or labor agreement, the terms of the employee’s disclosure authorization, or other considerations):

• description of the employee’s job-relevant functional impairments or limitations; and

• an estimate of the likelihood of, and time frame for, a return to unrestricted duty, and the basis for that estimate.

Some FFD evaluators may recommend courses of treatment for the employee (e.g., medication, therapy or counselling), and/or recommend work restrictions or accommodations, or other interventions. Others decline to do so in order to reinforce that their report is diagnostic not therapeutic, and leave all such follow-up to the employer and employee (and his or her treating physician or mental health professional, as appropriate).2

1 These issues may raise competing concerns. For example, summarization of background information may tend to protect the privacy

of the employee and/or co-workers or other interviewees, but may also be viewed as biasing the report for or against the employee. 2 If the FFD report includes such advice, it would become part of a subsequent disability accommodation process under ADA or

Canadian laws.

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6. Responding to the evaluation

There are a number of possible outcomes to a psychological FFD evaluation. These depend on the evaluator’s report and the employer’s and employee’s responses.

a. Fit for duty without restrictions

If the evaluator concludes that the employee is psychologically fit for duty, the employee is referred back to the employer.

In these situations, the employer has probably met its duty to perform a good-faith evaluation of the employee’s possible risk to the workplace. But the evaluation results do not dictate whether the employer should retain, discipline, or fire the employee based on workplace disciplinary considerations. The employee may still have personal problems or personality characteristics that affect his or her workplace performance and demeanor. These might be addressed by remediation, training, coaching, counseling, or disciplinary action, as appropriate to the specific situation. For example, an evaluator may recommend (or the employer and employee arrive independently at) EAP referrals for anger or time management classes, family counseling or other assistance with non-work problems affecting the employee, or advice to re-prioritize work and non-work activities to reduce stress.

An employer may choose to formalize any follow-up measures in a Return to Work Agreement (see next section).

b. Fit for duty with restrictions or modifications

If the evaluator determines that the employee’s workplace problems result from a personality or cognitive disorder, the evaluator may also determine that these impairments are manageable, with some combination of: • ongoing counseling or therapy;1 • restrictions on the employee’s duties; and • workplace modifications.

The employer and employee will need to determine whether appropriate modifications can be arranged. Note that an “impairment” identified by a psychological FFD evaluation may or may not constitute a “mental impairment” that renders the person “disabled” for purposes of the ADA or Canadian anti-discrimination requirements. If an employee qualifies as disabled, then the employer is required to consider whether workplace accommodations would allow continued employment, unless the employee poses a “direct threat” that justifies separation. Furthermore, ADA protects employees who are “regarded as” disabled, so the employer’s response to an FFD report may trigger ADA requirements on that basis. Legal requirements regarding disabilities, “regarded as” disabled, and accommodations are discussed in Tab K Chapter 2 of this Guide.

1 At least one court has found that the employer must pay for the employee’s time spent attending counseling ordered after a FFD

evaluation. See, Sehie v. City of Aurora, 432 F.3d 749 (7th Cir.2005).

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Note that the ability of the employer and employee to identify reasonable and effective restrictions/modifications/accommodations may, in practice, determine whether the employer ultimately considers the employee fit for duty (and, therefore, continuing employment), or unfit for duty. A variety of factors apply, including the following: • steps (modifications, treatment, etc.) that would lead to improvement; • how to implement these steps; • how to motivate the subject employee to comply with work modifications and/or

treatment; • time it may take to achieve acceptable levels of performance; • likelihood of adequate improvement with these steps; • how to determine when and if the employee has attained fitness for duty with these

restrictions and modifications; • how to determine when and if the employee has failed to attain fitness for duty even with

these restrictions and modifications; • how to determine when and if the employee attains but thereafter fails to remain fit for

duty even with these steps; and • what to do if the employee fails to achieve or maintain fitness for duty.

If an employee is allowed to return to work, the employer and employee should execute a formal Return to Work Agreement that documents the situation, including agreed-upon restrictions, modifications, and accommodations, and associated verification and compliance requirements. Forms and contents of these agreements vary greatly, but they should contain at least the following elements:1 • a formal stipulation that the employee has a work-related mental or psychological

impairment, which forms the basis for the agreement; • identification of the employee’s job/position, and listing of the essential functions of that

job that the employee cannot perform because of the impairment; • statement that this agreement is the formal statement of the agreed-to accommodations

and accommodation strategy; • statement that disciplinary issues are distinct from FFD concerns; • statement that the agreement is offered in support of the employee’s regaining full fitness

for duty, but does not ensure that outcome; • statement that the employee’s failure to comply with the agreement will constitute prima

facie evidence of his or her inability to perform the job, and will lead to disciplinary action up to and including dismissal;

1 This listing is derived from one in Fitness for Duty: Principles, Methods, and Legal Issues, which is cited above.

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• specific provisions of the agreement (tailored to the situation), including: —employee undertakings (regarding workplace activities and/or treatment); —employer undertakings; —monitoring provisions and any milestones (for achieving targeted goals, re-testing,

etc.); —the extent to which potentially privileged information may be provided (e.g., regarding

employee’s compliance with treatment provisions); and —identification of any terms that are time-limited.

An employee’s refusal to cooperate in the development and signing of a Return to Work Agreement might be cause for dismissal.

c. Unfit for duty

An “unfit for duty because of psychological or cognitive impairments” evaluation would presumably confirm an employer’s initial suspicion that the employee cannot work safely and effectively in the workplace. It should also reduce concerns for legal liability by providing an expert and objective third party’s evaluation that no restrictions, modifications or accommodations will overcome these shortcomings.1 It may also ease the employer’s conscience.

Presumably, therefore, the employer will proceed with termination or disability retirement. However, the “unfit for duty” evaluation will not provide guidance on how to manage a safe termination, especially if workplace violence concerns triggered the FFD referral in the first place.2

1 Although this outside report may justify an employer’s decision not to undertake an exploration of accommodations under the

disability discrimination statutes, the employer should still consult with legal counsel on this issue. For a court case involving multiple assessments in a situation where the employee was determined to be delusional, see, Lee v. Eden Medical Center, ___ F.Supp.2d ___ (N.D. Cal. 2010).

2 Terminations are discussed in Tab C Chapter 3.E.

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B. Establishing a Policy Regarding Psychological FFD Evaluations

Each employer should establish a policy regarding psychological FFD evaluations. This policy should include at least the following elements:

• statement of the policy and its purpose;

• identification of behaviors and circumstances that may trigger a psychological FFD evaluation;

• responsibilities—employees, supervisors/managers, and specific organizational units involved (such as Human Resources and Threat Assessment Team);

• general procedures to be followed (internal reporting and investigative steps, notifications, internal reviews, etc.);

• employee’s rights and obligations;

• employer’s rights and obligations;

• qualifications for FFD evaluator;

• standards to be met by a psychological FFD evaluation and report;

• access to and storage of the report (confidentiality);

• return to work considerations; and

• appeal procedures (if any; for example, whether the employee can obtain a second opinion).

E-4 Supplement 1 provides a sample FFD policy.1 E-4 Supplement 2 provides an actual policy, promulgated by the Delaware Office of Management and Budget.2 Note that this sample does not address situations initiated when an employee reports that he or she is suffering from an impairment or disability, and/or requests accommodation or leave to address related difficulties. These situations are more likely to be treated as requests for accommodation under disability discrimination laws (see Tab K Chapter 2).

1 Employers may combine policies and procedures related to psychological FFDs with those related to physical FFDs (which often are

conducted prior to an employee’s return to work after an occupational injury or illness), and/or with policies related to testing and/or sanctions related to possible alcohol and substance abuse. These additional topics are beyond the scope of this Guide.

2 This policy is available via the Internet at www.delawarepersonnel.com/policies/fitness.shtml.

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E-4 12 WVP 12/09 ©STP

C. Considerations in Selecting an Evaluator for a Psychological FFD

Important professional and practical considerations affect an employer’s choice of an evaluator for a psychological FFD.

First, psychological FFD evaluations obviously should be conducted only by a qualified mental health professional. At a minimum, the evaluator should be a licensed psychologist or psychiatrist with education, training, and experience in the diagnostic evaluation of mental and emotional disorders.1 In addition, the evaluator should have the following expertise and experience:

• be familiar with the essential job functions of the employee being evaluated;

• if possible, possess training and experience relevant to the employee’s profession and workplaces containing these personnel (e.g., law enforcement personnel, fire fighters, doctors);2

• have training and experience in forensic psychological or psychiatric assessment, sufficient to qualify as an expert should the need arise in any related litigation, arbitration, or adjudicative proceeding;

• be familiar with relevant state/provincial and federal statutes and case law, as well as other legal requirements related to employment and personnel practices (e.g., disability, privacy, third-party liability); and

• satisfy any other minimum requirements imposed by the local jurisdiction.

Second, it must be made clear to all concerned (employer, employee, and evaluator) that the client in an FFD evaluation is the employer, not the employee being evaluated. The employer should ensure that all parties sign written acknowledgements of this fact, including an explanation of the uses to which the evaluator’s report may be put (in particular, the scope of information to be provided to the employer).

Third, the evaluator owes an ethical duty to both parties to be fair and impartial, and to honor their respective legal rights and interests. Other legal duties also may be owed to the employee as a result of statutory or case law unique to the employer’s or the evaluator’s jurisdiction. Any possible conflicts of interest should be disclosed, and may be reason not to use the evaluator.3

1 Professional organizations whose membership lists include psychological FFD evaluators include the American Psychiatric

Association (information is available through the Internet at www.psych.org), the American Psychological Association (see www.apa.org), the Academy of Organizational and Occupational Psychiatry (see www.aoop.org), the Canadian Psychological Association (see www.cpa.ca), and the Canadian Psychiatric Association (see www.cpa-apc.org).

2 Profession-specific FFD guidelines are available for law enforcement (IACP guidelines, see prior footnote); and physicians (American Psychiatric Association, Joint Reference Committee, “Guidelines for Psychiatric ‘Fitness for Duty’ Evaluations of Physicians” (2004); available on the Association’s Internet site at www.psych.org).

3 The IACP guidelines cited above state that “Examiners should decline to accept an [FFD evaluation (FFDE)] referral when personal, professional, legal, financial, or other interests or relationships could reasonably be expected to (a) impair their objectivity, competence, or effectiveness in performing their functions or (b) expose the person or agency with whom the professional relationship exists to harm or exploitation (e.g., conducting an FFDE on an employee who had previously been a confidential counseling or therapy client, evaluating an employee with whom there has been a business or significant social relationship). Similarly, an FFDE examiner should be mindful of potential conflicts of interest related to recommendations or the provision of services following the evaluation (e.g., referring an examinee to oneself for subsequent treatment). If such conflicts are unavoidable or deemed to be of minimal impact, the examiner should nevertheless disclose the potential conflict to all affected parties.”

Psychological Fitness for Duty

WVP 5/12 ©STP E-4 13

IMPLEMENTATION CHECKLIST

1. Establish a policy governing psychological fitness for duty (FFD) evaluations.

Yes No

Has the organization promulgated an FFD policy? If yes:

❏ Does the policy address only psychological FFD evaluations? OR ❏ Does it also include evaluations of physical and non-psychological medical FFD? ❏ Does the policy require FFD evaluations as conditions for return to work?

❏ ❏

2. Specify the coverage and scope of the psychological FFD policy, and associated procedures, rights and obligations. Does the policy include a statement of general purpose? ❏ ❏

Does the policy identify behaviors and circumstances that may trigger a psychological FFD evaluation?

❏ ❏

Does the policy clearly establish and define responsibilities – employees, supervisors/managers, and specific organizational units involved (such as Human Resources and Threat Assessment Team)?

❏ ❏

Does the policy summarize general procedures to be followed?

❏ ❏

Does the policy set forth subject employees’ rights and obligations?

❏ ❏

Does the policy set forth the organization’s rights and obligations?

❏ ❏

Tab E Chapter 4

E-4 14 WVP 5/12 ©STP

Yes No Does the policy state the qualifications necessary for the psychological FFD evaluator? ❏ ❏

Does the policy summarize the contents of a psychological FFD evaluation and report? ❏ ❏

Does the policy specify provisions for access to and storage of each report? ❏ ❏

Does the policy address return to work considerations? ❏ ❏

Does the policy describe any applicable appeal and/or second opinion procedures? ❏ ❏

3. Identify qualified psychological FFD evaluator(s). Has the organization identified one or more psychological FFD providers, who are qualified by training and experience to provide these services?

❏ If so, has the organization confirmed that they have no conflict of interest (e.g., whether they provide services to employees through its EAP)?

❏ ❏

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Workplace Violence Prevention: A Practical Guide to Security

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