By William Wiley, November 6, 2017

Several months ago, we had an article in our FELTG newsletter about approved lying in an EEOC proceeding. Recently, I stumbled across a similar initial decision by an MSPB judge that gave me pause. Just how far can the requirement for medical record confidentiality be stretched?

The individual in this case applied for and held one of the most onerous jobs in the federal government. He was an FBI special agent assigned to Bureau’s hostage rescue team. Body armor, getting shot at, rappelling out of helicopters; all in a day’s work for those folks. You need to be trusted to have serious physical abilities and solid psychological credentials to provide that kind of important government service. To make sure that candidates for these positions possess all the necessary physical and mental characteristics necessary, the FBI requires individuals to undergo initial and periodic fitness for duty exams.

As part of that exam, our appellant in this case had been asked to list his current medications. In response, our appellant said, “None.” In fact, he said “None” a couple of times over a period of three years because he had a couple of medical exams during his employment.

Well, as it turns out, the answer “None” wasn’t exactly accurate. The appellant had in fact been medically prescribed and was taking anabolic steroids during the time of the exams. He did not disclose this fact in response to the “current medications” question because he believed it to be his “private medical information” and that the FBI did not have a legitimate need to know it. When the FBI eventually found out about the deception, it fired the steroid-taker for providing false or misleading information on the medical form, and lack of candor in the related investigation.

So, what do you think? Does it make for a better country if the FBI knows whether one of its hostage-rescue agents is taking steroids, a type of drug reported to sometimes cause increased aggressiveness? Should an agency be able to demand straightforwardness and candor from its employees during an investigation? Or, is America a brighter beacon if we allow special FBI agents to engage in deception about the drugs they are taking?

Well, if you voted for unidentified drug-taking and deception, you will like the rationale of the Board’s judge in this case. On appeal, the AJ reversed the removal and restored this individual to the agent-hood, reasoning that the FBI’s question about “current medications” was illegal. You see, the Americans with Disabilities Act limits an agency’s authority to demand medical information from its employees to only those medical facts that are consistent with a business necessity. To the judge in this case, that meant that the questions could not be as broad as asking for “current medications” and instead had to be narrowly tailored so that they were no more intrusive than necessary. As the question was illegal under the ADA, the employee cannot be faulted for falsifying his answer to it. Litton v. DoJ, DC-0752-14-1110-I-2 (September 22, 2017) (ID).

I am at a loss as to what the FBI could have done differently. A colleague with whom I was discussing this case suggested that maybe the “narrow tailoring” that would have made the question ADA-compliant would have been to ask the employee if he was taking any “current medications that might affect job performance.” Well, that puts the question on the employee to assess which of his medications might affect his performance. Maybe this guy never heard of “steroid rage.” It doesn’t seem practical to leave it up to the employee to decide which of his drugs could cause problems at work. The FBI’s medical examiner is in the better position to make that determination.

To me, this is one of those wayward decisions that makes the public think poorly of the civil service. No wonder that there are people on Capitol Hill who would abolish MSPB and the civil service protections when they hear about cases like this. If the Board is going to interpret our laws to allow FBI agents to make false statements about their medications, there really is something wrong with our system.

Of course, this is the opinion of a single administrative judge of the Board. No doubt the FBI will file a petition for review and have President Trump’s new Board members (if any are ever appointed, that is) review this decision. Perhaps those appointees will see things differently, recognizing that individuals have rights to medical information privacy, but not to the extent of deceiving their employer who legitimately needs the information.

Until then, let’s look on the bright side. If you are a medical-marijuana card-carrying civil-servant of states like my home of California, if your agency asks you what medications you are taking, according to the rationale of this judge, you don’t have to tell them about the dope. If your agency gets all specific and asks you if you’re using marijuana, perhaps that question exceeds what is called for by “business necessity.”

But, what do we know here at FELTG. Best to get your own legal advice on that before you try it. We love to read interesting cases, but we don’t like to cause them. [email protected]

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