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Importance of Neuropsychological Fitness for Duty Evaluations
Neuropsychological fitness for duty evaluations are essential in objectively assessing an employee's cognitive and psychological capabilities to perform job-related tasks. These evaluations are particularly crucial in safety-sensitive positions where impaired cognitive functioning, attention, self-control, or psychomotor functions can lead to significant risks, including accidents, errors, and harm to the public or colleagues. By identifying potential impairments, the neuropsychological FFD can advise about issues that impact on ability to return to work safely or determine if appropriate treatment or other measures need to be taken to ensure workplace safety and employee well-being.
Many conditions, when coupled with observable behavior or corroborated information about ability to perform safely can trigger needs for a neuropsychological fitness for duty evaluation. Obvious neurological conditions that could raise concerns include but are not limited to traumatic brain injury or concussions, seizures, strokes, degenerative brain disease, and conditions which impact on reaction time, coordination, alertness, attention, multi-tasking, behavioral stability, or judgment. Even psychiatric diagnoses such as PTSD, anxiety, or depression can have mild cognitive impacts on behavior, ability to resist impulses, processing speed, attention, and other functions which may impact safety-sensitive functions (Rimmer, 2022).
Generally, FFD evaluations are indicated or allowed when an employer has a business necessity to ensure safe performance, provide a safe working environment, and that there are indications and objective information that would cause a reasonable person to believe an employee may be unfit or unsafe due a psychiatric, neurological, or medical condition.
A reasonable belief must be based on objective evidence and not on stereotypes or assumptions. An objective basis is one that derives from direct observation, credible third-party report, or other reliable evidence. Information obtained from third party reports raising concerns about safety should be corroborated by further investigation or objective observations before referring for fitness for duty evaluations.
In an appellate decision in the case of Paul Williams vs. Township of Lakewood (2016) the court overturned the Township’s decision to terminate an employee when the employee refused a fitness-for-duty examination. The court gave the right to require a fitness-for-duty examination under the ADA, but only when the employer has a reasonable belief, based on objective evidence, that the employee’s ability to perform an essential function is impaired by a medical condition or the employee will pose a direct threat to himself or others due to a medical condition. The court ruled that the employer had a duty to conduct further investigation to corroborate a letter’s allegations of mental instability before conditioning continued employment on submission to the examination.
Observable Behaviors Warranting Referral
Certain behaviors may indicate the need for neuropsychological fitness for duty evaluation:
- Frequent Mistakes or Errors: Repeated errors in tasks that require precision and accuracy.
- Memory Lapses: Difficulty recalling essential information or procedures.
- Poor Decision-Making: Inability to make sound decisions, especially in high-pressure situations.
- Changes in Motor Skills: Noticeable decline in coordination or motor abilities.
- Emotional Instability: Uncharacteristic mood swings, irritability, or difficulty managing stress.
- Threats or Actual Harm to Self or Others Obviously, stated intents or threats to engage in unsafe behavior would raise safety concerns and may require law enforcement intervention or investigation. Domestic violence incidents, assaults in the workplace, and involuntary psychiatric admissions for concerns about potential danger to self or others would cause concerns for safety-sensitive positions.
Mood, alcohol, and substance abuse problems often cause behavioral changes which may prompt referrals for psychological fitness-for-duty-evaluations. The employer should be alert for changes which may manifest in the workplace after strokes, traumatic brain injuries, severe medical illness, and associated medication and treatments. Sometimes evaluations will be indicated after an FMLA event that might reasonably cause persisting concerns about occupational safety or capacity.
The standard regarding observable behavior or information warranting referral for a fitness for duty evaluation is known as the “reasonable person standard.” Referral does not require the expertise that would be expected of a physician or mental health professional. If a reasonable person would doubt whether an employee can safeky perform the job, this would justify a referral for a fitness for duty evaluation (i.e., Law v. Garden State Tanning, 159 F.Supp. 2d 787 (E.D. Pa. 2001). Jackson v. Lake County, 2003 U.S. Dist. Lexis 16244.). Indeed, failures to take steps (FFD or other steps) that a reasonable person would ensure safety could expose employers and supervisors to liability.
It is important to note that it is not the employer's responsibility to diagnose the underlying condition. However, the employer should recognize the need for a fitness for duty referral when a general change in health or behavior manifests in observable behavior or performance problems which may jeopardize the occupational safety of the public or co-workers.
When referring an employee for a fitness for duty evaluation, employers should follow these best practices:
- Document Observations: Keep detailed records of the behaviors and incidents that prompted the referral.
- Consult with HR and Legal Teams: Ensure that the referral process complies with company policies and legal requirements.
- Communicate Clearly: Inform the employee about the reasons for the referral and the evaluation process.
- Select Qualified Professionals: Choose neuropsychologists with experience in conducting fitness for duty evaluations.
- Maintain Confidentiality: Protect the employee's privacy throughout the evaluation process.
The employer’s referral to the examiner should include a description of the objective evidence giving rise to concerns about the employee’s fitness for duty and any questions that the employer wishes the examiner to address. In most circumstances, the referral, and the basis for it, should be documented in writing, either by the agency or the examiner.
The examining neuropsychologist or psychologist should receive background and collateral information regarding the past and recent work performance, conduct, and functioning. Since employees may have motives to hide or distort information, collateral records and sometimes collateral interviews can help verify information and provide more objective information.
Collected information should be related to job performance issues and/or the suspected job-impairing mental condition.
Job descriptions, performance evaluations, commendations, training achievements, previous discipline, or work counseling efforts, any public or co-worker complaints for law enforcement officers use-of-force or other relevant incidents, IA investigations, reports related to officer-involved shootings, or civil claims would be provided. Ideally, the fitness-for-duty evaluations should instruct the employee to provide any requested releases of medical or mental health information to the examiner.
The examiner should provide discussion of limitation of findings if there was any information that was not available or withheld that might change findings or conclusions.
Neuropsychological Areas of Focus for FFD Evaluations
Fitness for duty evaluations will involve multiple approaches and data sources to ensure accurate information and validity of results. This will frequently involve a review of material presented by the employer, transcripts or interviews involving concerns, medical, psychiatric, and other records, relevant medical, behavioral, developmental, social, and occupational history, a comprehensive clinical interview, and mental status examination. Psychological and neuropsychological evaluations will include psychological and neuropsychological measures which quantify abilities and areas of difficulties, response bias, and which provide information relevant to concerns about safety or performance.
While psychological fitness for duty evaluations are commonly used to identifying mood, behavior, or personality issues that may impair or preclude safety-sensitive work, neuropsychological evaluations are much more sensitive to developmental or acquired neurological impacts on performance and provide quantitative data on functional abilities.
For employees in safety-sensitive positions, several neuropsychological areas are critical:
- Attention and Concentration: The ability to maintain focus and process information accurately is vital in roles such as air traffic control, law enforcement, and medical procedures.
- Memory: Short-term and long-term memory are crucial for tasks that require recalling protocols, procedures, and critical information.
- Executive Functioning: This includes problem-solving, decision-making, and planning, which are essential for roles that involve quick thinking and crisis management.
- Motor Skills and Coordination: Fine and gross motor skills are necessary for tasks that require precision, such as surgery or operating machinery.
- Emotional Regulation: The ability to manage stress, emotions, and interpersonal interactions is important for maintaining a stable and safe work environment.
- Impulse Control: Related to emotional regulation and executive functioning above, this involves the ability to suppress, manage, and inhibit motor behavior and emotional reactions.
Generally abbreviated or “short” versions of tests are best avoided since administration of fewer items reduces reliability, which in turn reduces validity.
In addition to diagnostic interviews, FFDE evaluations involve inquiries into the alleged changes in behavior or concerns. Evaluations may require multiple sessions and take quite a bit longer than typical clinical evaluations. In the case of neuropsychological or psychological testing, two or three days of evaluation may be required.
Employees should be asked to complete any requested history forms prior to the appointment and directed to sign any necessary releases of information. Employees should be advised to be available for the entire time scheduled and to continue the evaluation with follow-up appointments until they are complete. Breaks are provided.
If traveling from far out of town, employees should arrive the day or evening before the evaluation and ensure good rest.
Employees should be instructed to bring any assistive devices needed such as eyeglasses, ambulatory devices, hearing aids, etc.…
Employees should be advised to take their regularly prescribed medication as prescribed.
Cooperation, Test, and Response Bias in Fitness-for-Duty Evaluations
Fitness-for-duty evaluations are essential in determining whether employees in safety-sensitive positions can perform their duties effectively and safely. However, as in many evaluations with potential for favorable or unfavorable consequences for examinees, these evaluations can be influenced by level of cooperation.
Cooperation during fitness-for-duty evaluations is crucial for obtaining accurate and reliable results. Lack of cooperation can manifest in many ways, including refusal to participate, incomplete responses, or attempts to manipulate the evaluation.
In pre-employment and fitness for duty settings, employees may have strong motivations to minimize or deny or minimize complaints in what is often termed a “fake good” effort. At other times, an employee may have external incentives to exaggerate problems or impaired abilities when they are involved in potential litigation against the employer or other defendant, or when they may be seeking disability benefits.
Employees may undermine the evaluation process in a number of ways:
Refusal to Participate: An employee may refuse to undergo the evaluation or provide necessary information, which can hinder the assessment process.
Incomplete Responses: Providing incomplete or inconsistent answers can indicate a lack of cooperation and affect the validity of the evaluation.
Manipulation: Attempts to manipulate the evaluation, such as feigning symptoms or trying to present oneself in a favorable light, can compromise the accuracy of the results.
Withholding or Misrepresenting Information: Employees may refuse to sign releases, provide incomplete lists of treating providers, medications, hospitalization, and other information. Intentional provision of false information may present grounds for dismissal. Obtaining collateral information directly from sources reduces the risk of employees withholding or misrepresenting information.
Response bias refers to the tendency of individuals to respond to test items in a certain way, regardless of their true abilities or characteristics. This can include social desirability bias (trying to present oneself in a favorable light), acquiescence bias (agreeing with statements regardless of their content), and malingering (exaggerating or feigning symptoms).
Psychological and neuropsychological evaluations can provide data-backed information on response bias which can help document level of cooperation. It is important to use appropriate norms, such as law enforcement norms, on personality measures such as the MMPI or PAI.
Courts have found that failure to submit to a fitness for duty examination, “when there are good reasons for directing an employee to submit to it,” is insubordination and can justify discharge (Risner v. U.S. Dept of Transp., Etc., 677 F.2d 36 (8th Cir. 1982); Smith v. United States Air Force, 566 F.2d 957 (5th Cir. 1978)).
While lack of cooperation can be a just cause for dismissal, government employees removed from their jobs have a right to due process. While in some circumstances employees may not be entitled to the FFD report, employees have a right to have experts or others review and challenge the report. This includes being able to challenge and examine the information or testing data that may have been used to determine if the employee was not cooperative (i.e., Ramirez v. Dept. of Homeland Sec., 975 F.3d 1342 (Fed. Cir. 2020 as cited in VanDercar et al 2021).
In cases in which the raw psychological test data is needed for review, guidelines to protect test security suggest that this only be provided to a licensed psychologist.
Examiners should incorporate performance validity tests (PVTs) and Symptom Validity Tests (SVTs) in the examination and testing process. Neuropsychological testing has become quite sophisticated and if appropriate measures are used, they are sensitive in detecting both problems and in detecting response bias.
Psychological and neuropsychological testing has the advantage of providing objective normed-based measures of performance and complaints. Established reliability and validity are important underlying statistical aspects of these approaches in applying results to determinations of interference with safety-sensitive or essential job functions.
Possible Outcomes of the FFD Evaluation
The outcomes of a neuropsychological or psychological fitness for duty evaluation can involve the following:
Fit for Duty: The employee is deemed capable of performing their job without restrictions.
Fit for Duty with Accommodations: The employee can perform their job with certain modifications or support.
Not Fit for Duty: The employee is determined to permanently be unable to perform their job safely.
In a mental health context this would indicate that the employee is considered unfit for duty and is unlikely to become fit in the foreseeable future, with or without mental health or other treatment. Permanent conditions which might result in behavior or performance problems that might make an employee unfit include but are not limited to personality disorders, traumatic brain injuries, substantial strokes, degenerative neurological conditions, chronic substance abuse problems that are worsening or have been recurrent despite treatment, and severe mental illness which has not been responsive to treatment or which may require multiple medications that interfere with safety and performance.
Not Fit for Duty but Treatable or Temporarily Not Fit for Duty This may also be referred to as “Unfit but treatable” In these cases it is assumed the employee is amenable to effective treatment and likely to be treatment compliant.
An employer may ask for estimations of the amount of time that an employee may be temporarily not fit for duty. A repeat FFD evaluation may be required or recommended to determine that treatment has been successful at addressing behavior or deficits that were of concern.
No Diagnosis This may be an option when problematic behavior, performance deficits, or other issues raising concerns about safety are not attributable to a personality, psychiatric, neurological, or medical diagnosis. This typically would involve problematic behavior or performance that is not related to any underlying diagnosis. Coaching, education, conflict resolution, or discipline may be options in such cases.
Invalid Examination A determination of an invalid evaluation may be indicated when for various reasons there has been insufficient cooperation. This would be most appropriate when the employee has not been truthful has exhibited malingering or unrealistic response bias on tests, refused information, or other behaviors interfering with the evaluation which would not allow the examiner to be reasonably certain about fitness for duty,
Formal fitness for duty evaluation reports attempt to comply with the minimum necessary standard for information provided to the employer. This can vary depending on the complexity of the case, potential for litigation, and complexity of the findings. Information important to document are the reasons for the employer’s concerns and the reasoning and support for the examiner’s opinions, diagnoses, and conclusions. Judgment is required about sensitive topics in terms of the details necessary, but it must be recognized that most things that are sensitive are probably relevant to psychological functioning.
Legal Considerations for Fitness for Duty Evaluations
Fitness for duty evaluations are subject to various legal considerations to ensure that they are conducted fairly, are not discriminatory, respect employee rights, and follow relevant federal and state laws. When there is good reason to doubt an employee’s ability to respond to critical or safety situations appropriately and there is potential for serious harm, fitness for duty evaluations are considered appropriate and a business necessity.
This article should not be taken as legal advice. Laws may differ in Federal and State jurisdictions and may differ in different occupational settings. When in doubt, attorney consultation is always advised. For example, How to Handle Fitness for Duty Evaluations: Rights and Legal Considerations | Law Office Of Shannon James PLLC provides information about laws and procedures involving military FFD evaluations.
Law enforcement agencies and providers of FFD evaluations for law enforcement officers should be familiar with the International Association of Chiefs of Police (IACP) Police Psychological Services Section guidelines which educate and inform public safety employers about fitness for duty evaluations.
It is important to determine which jobs are considered safety sensitive. The most common examples of safety-sensitive positions include DOT-specified transportation and gas positions, driving, law enforcement, military and security, pilots, health care providers, high-voltage equipment operators, heavy equipment operators, air-traffic controllers, nuclear and other power-plant operators, and individuals who may need to supervise the safety of children.
The ADA limits an employer’s ability to make disability-related inquiries or require medical examinations at three stages: pre-offer, post-offer, and during employment. Evaluations and actions should be conducted in a manner that is not discriminatory and respects employee rights.
A fitness for duty examination ordered by an employer is considered a medical examination under the ADA.
- Pre-offer Stage: The ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job. Employers can only ask if the employee can perform the essential functions of the job with or without accommodation.
- Post-offer Stage: After an applicant is given a conditional job offer, but before they start work, an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
- During Employment Stage: After employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. This standard is generally met if the employer has a reasonable belief that the employee’s condition may prevent them from performing the job’s essential functions or poses a direct threat to their own safety or the safety of others. This is the circumstance in which most fitness for duty evaluations are conducted.
In cases involving law enforcement, stressful, or critical occupations where there is an objective reason to be concerned that an employee may not perform safely, it is prudent not to wait for actual impaired performance or a tragic accident or incident to happen. In Brownfield vs. City of Yakima (2010) the federal circuit court upheld the order for a fitness for duty evaluation though there was no evidence of impaired work performance. Also see Watson v. Miami Beach, 98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.) for findings that a law enforcement agency does not have to wait until a perceived threat becomes real or real injuries are sustained.
Fitness for duty evaluations should not be used in a discriminatory manner. Employers should be able to demonstrate referrals for similar concerns for other employees and that the employee is not being singled out for behaviors that are not normally sent for referral. f Certainly such evaluations should not be used for retaliation or to selectively target whistleblowers. However, individuals who make repeated harassment claims without much merit may warrant psychological fitness for duty examination.
Furthermore, while employees may present a medical certification of return-to-work status after an FMLA event, employers have a right to call the employee to work and complete a fitness for duty evaluation at the employer’s expense to determine if the employee is capable of safely performing work duties. An appellate court decision in White v. County of Los Angeles found that “… FMLA should be interpreted to render the employee's health care provider's opinion conclusive on the issue of whether the employee should be immediately returned to work, but to permit the employer to thereafter require a FFDE, if it has a basis to question the employee's health care provider's opinion.”
Informed Consent
The employer and examiner should ensure the employee is informed about the purpose of the evaluation, what it entails, the possible outcomes, and who will have access to the results. Obtaining written consent is important in documenting agreement to the evaluation procedures, the handling of any information, release of information, the possible outcomes of the evaluation, and the risks and benefits of cooperating or not cooperating with the evaluation.
An informed consent should also include a description of the nature and scope of the evaluation, limits of confidentiality, the parties which will receive the Fitness for Duty Evaluation report, and any information which may be disclosed without consent. Employers should advise and include descriptions of established policies and procedures related to the employer’s fitness for duty evaluations.
Confidentiality
Confidentiality and informed consent are important medicolegal aspects of fitness for duty evaluations.
Employers must ensure that they have established procedures to keep employees’ medical and psychological information private and only shared with authorized personnel. This includes maintaining secure records and limiting access to those who need to know the information for legitimate business purposes. All records related to the evaluation, including medical and psychological reports, should be securely stored. Access to these documents should be limited to authorized personnel only.
Employers should inform the employee and the examiner as to who the FFD report will be provided to, who may have access to it, and how it will be stored to ensure confidentiality throughout the process. It is advisable to use secure methods for transmitting and storing evaluation data. This includes encrypted emails, secure file-sharing platforms, and password-protected documents.
Information obtained during the evaluation should only be shared with those within the organization that have a legitimate need to know. This may include HR personnel, the employee's supervisor, and legal advisors. Individuals handling this information should be instructed in the importance of maintaining confidentiality and this should be codified in employer’s policies and procedures.
Summary
Fitness for duty evaluations have evolved from primarily physical assessments to including cognitive testing, particularly in fields like law enforcement and healthcare, where cognitive impairments can have profound consequences. Neuropsychological fitness for duty evaluations is crucial in safety-sensitive occupations to assess employees' cognitive and psychological capabilities, ensuring workplace safety, and public welfare. These assessments help identify cognitive impairments that could lead to workplace accidents or errors, thereby protecting both employees and the public.
Referrals should respect employee’s rights, not be discriminatory or retaliatory, follow employer rules and procedures, follow state and federal regulations, be based on reasonable, observable, and objective information, involve informed consent, and procedures for handling confidential information. Frequent mistakes, threats towards self or others, memory lapses, marked changes in behavior, poor decision-making, excessive unexplained absences, critical incidents, and emotional instability may trigger referrals. Employers should document observations, consult with HR and legal teams, communicate clearly with employees, and select qualified professionals for evaluations.
Key areas of focus of neuropsychological FFDE typically include personality functioning, mood stability, attention, memory, executive functioning, motor skills, emotional regulation, and impulse control, all of which are essential for safety-sensitive roles.
Clear procedures for access and storage of reports which will involve determinations of being fit for duty, fit with accommodations, temporarily not fit for duty, or likely permanently not fit for duty. Employers should provide employees with information about leave and pay, and the possible outcomes of the evaluation.
Given the high-stakes nature of fitness for duty, which can involve litigation, it is critical to consult with experienced professionals and select examiners with broad experience in conducting such evaluations.
References
Psychological Fitness-for-Duty Evaluation Guidelines Ratified by the IACP Police Psychological Services Section, Orlando, Florida 2018
Gehl C, Gernant AL, Kliewer A, Harris S. Neuropsychology's Role in Assessment of Medical Decision-Making Capacity, Home Safety, and Driving Ability. Neurol Clin. 2024 Nov;42(4):903-917. doi: 10.1016/j.ncl.2024.05.002. Epub 2024 Jul 2. PMID: 39343483.
Meredith Rimmer, A-304 Neurocognitive considerations for Fitness for Duty Evaluations and Its Impact on Occupational Functioning in Police Psychology, Archives of Clinical Neuropsychology, Volume 37, Issue 6, September 2022, Page 1458, https://doi.org/10.1093/arclin/acac060.304
Ashley H. VanDercar, Neil B. Bruce Fitness for Duty Evaluations Predicated on Psychological Data Journal of the American Academy of Psychiatry and the Law Online Dec 2021, 49 (4) 634-636; DOI: 10.29158/JAAPL.210127L2-21
Published 6/12/25 Revised:
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