Part 4: Getting, offering, or demanding help…what are some suggestions? “Now that you mention it, can you force people to get help?” – A reprise
So you wrote to me that your “other issue” was the question of what a fitness-for-duty evaluation might entail, and why we should probably not try to go there too quickly. Yes, that is a complicated issue.
Don’t Ask for Genetic Information
There is some room for this type of evaluation within the ADA. As a ground rule, in approaching it, be careful not to ask an employee questions about family medical history, or any other type of genetic information. This would include, for instance, whether the family has a history of bipolar disorder. Asking such questions would violate the Genetic Information Nondiscrimation Act—our old friend GINA.
Routine Fitness-for-Duty Evaluations—Don’t Do It
Next, can you routinely give fitness-for-duty tests? Unless your mission is involved in law enforcement, probably not. Law enforcement and the military have special latitude to do this type of testing because of a compelling interest in public safety. The government gives these employees guns and puts them in stressful situations—a very bad scenario if the person holding the gun is irrational. The mission agency probably does not give its employees weapons, and if they act irrationally, it is unlikely to be a public safety issue. So you don’t get the same free pass.
When a Fitness-for-Duty Evaluation is Appropriate
If you can’t routinely give a fitness-for-duty test, can you ever give it? Yes, there may be reasons to do so. If you become aware that an employee is having problems, you may have an objective need to evaluate the employee. Some kind of medical examination or disability-related inquiry may become appropriate when the employer has a reasonable belief, based on objective evidence, either that the employee cannot perform essential job functions, or that the employee will prove a direct threat.
For the first part of the test, we go back to the job description. What are the essential functions of the job? To the extent that spiritual maturity, emotional stability, and the ability to function well with team and family are essential to the job and/or ministerial duties, we hope you said so. Second, what does it mean to be a threat? Just having a psychiatric disability does not make the person a threat. The person’s behavior has to show that he or she is a threat to self or others. If you reasonably anticipate violence towards self or others, that would make the person a threat. If the person is a threat in a psychological sense, that is going to take much more careful analysis. While having a toxic impact on the team could make a person a threat, it might be much simpler if spiritually mature and life-giving relationships were part of the job standard.
In any case, once you have met the “job function” or “threat” standard, you can do appropriate medical and psychological testing. Lastly, just make sure that the information gathered during the testing is stored and shared safely according to all personal information data protection standards that apply, whether HIPAA, GINA, or European data protection standards.
Featured Image: ”Test” by Pixabay.
Disclaimer: not official legal or psychological advice or opinion
Because of the generality of the information on this site, it may not apply to a given place, time, or set of facts. It is not intended to be legal advice, and should not be acted upon without specific legal advice based on particular situations