Whistleblowers must watch for retaliatory fitness-for-duty exams

Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

In response to news reports that management at the Department of Veterans Affairs punished staff members at VA facilities who criticized the agency’s deceptive patient waitlist practices, Sens. John McCain and Jeff Flake asked the agency’s acting inspector general to investigate claims of retaliation against whistleblowers. I believe anyone reviewing allegations of whistleblower retaliation – especially at agencies with large populations of disabled employees – should be on the lookout for adverse actions less common among non-disabled employees. In fact, the VA employs more non-seasonal, full-time, permanent disabled individuals than any other federal executive branch (not including the Department of Defense combined with the Departments of the Air Force, Army and Navy) – totaling 35,913 in fiscal year 2012, according to an Office of Personnel Management (OPM) report.

While not exclusive to individuals with disabilities, retaliation in the form of a requirement to take a fitness for duty examination appears to be a small but growing problem in the federal government. In 2010, 6.1 percent of federal employees who were subjected to or threatened with whistleblower retaliation said they experienced retaliation in the form of a fitness for duty examination – up from 1.6 percent in 1992, according to a Merit Systems Protection Board (MSPB) survey. And at the Equal Employment Opportunity Commission (EEOC), disability discrimination was the most commonly cited base for complaints over medical evaluations filed in fiscal year 2011. Retaliation was the second most commonly cited base for complaints over medical evaluations, according to an agency report.

Years ago, retaliation in the form of fitness for duty examinations was such a problem in the federal government that it prompted an investigation by a subcommittee of the House Committee on Post Office and Civil Service, a predecessor of the House Committee on Oversight and Government Reform. A 1978 report by the subcommittee stated, “The fact that fitness for duty examinations are used as the result of personality conflicts, and for retaliation, means that the morale of federal employees is being undermined, the reputation of the Government damaged, and the purposes of the Congress frustrated.” As the MSPB noted in Harris v. Department of the Air Force (1994), the subcommittee prompted OPM to overhaul its regulations and curb agencies’ ability to order medical examinations.

Federal regulation allows agencies to order medical examinations if an employee holds or applied for a position with medical standards or physical requirements or that is part of a medical evaluation program. Examinations can be ordered for these individuals when they are routine or under special circumstances, such as when their ability to meet a position’s physical or mental requirements is in question. Psychiatric evaluations can be ordered when they are required for a position with medical standards or that is part of a medical examination program, or when a properly ordered general medical examination uncovers no physical explanation for an employee’s behavior or actions that may “affect the safe and efficient performance of the individual or others.” If the employee has a disability, the agency could order a medical examination so long as it reasonably believes a medical condition affects his or her ability to perform essential job functions or the condition makes him or her pose a direct threat, the EEOC noted in Amen v. U.S. Postal Service (2003).

Agencies have been caught ordering employees to submit to a psychiatric or fitness for duty examination even though none of the relevant circumstances outlined in regulation applied to their positions, as was seen in Harris and John Doe v. Pension Benefit Guaranty Corporation (2012). And in 2011 the OSC convinced the MSPB to stay the Department of Homeland Security’s removal of an employee who had disclosed to the Office of the Inspector General information about a compromised potential internal affairs investigation. This whistleblower was subjected to various forms of retaliation, including orders to submit to physical and psychiatric examinations.

With fitness for duty examinations, agencies put safety first, namely the safety of employees, their co-workers and the people they serve. Safety first, however, does not necessarily mean protection against discrimination and retaliation comes second, or never.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.