On how many occasions have you found yourself asking whether you can lawfully send an employee for a fitness for duty evaluation? At one time or another you may have been faced with an employee whose ability to perform their job is questioned. Sometimes these situations are clear: the employee is actually failing to perform his or her job duties and you have cause to believe they are not fit for duty. However, what about situations where an employee is performing the functions and duties of their job, but is acting out behaviorally in a way that is stressful and disruptful to a department or unit? Can that employee be sent for a fitness for duty evaluation even though they are competently performing their actual job duties?
In Brownfield v. City of Yakima, 612 F. 3d 1140 (9th Cir. 2010), Brownfield, a Yakima police officer, was performing his duties as a peace officer, but his communications with his supervisors were overly emotional on about five occasions. For example, he used an expletive and he walked out of a meeting with two of his supervisors. On another occasion, Brownfield swore at a supervisor and told him to leave the room when he was talking with another officer. As a result of this behavior, the City ordered Brownfield to undergo a fitness for duty examination. The doctor diagnosed Brownfield with a permanent mood disorder and concluded that he was unfit for police duty. The City terminated Brownfield on the ground that he was unfit for duty.