By Barbara Haga, June 14, 2017
Last month I wrote about “unnecessary barriers” that are included in agency performance plans and union contracts, that inhibit the ability of an agency to take action on performance problems. This month we’re going to take a look at the OPM regulations on medical examinations. Talk about some “unnecessary barriers.” So, President Trump, if you want some more things to put on the list of what is getting in the way of doing what needs to be done, here’s one for you.
Quick Review – Physical Examinations
OPM’s medical examination regulations set conditions for when physical and psychiatric examinations may be ordered and offered. If you’ve been a FELTG reader for a while, you have heard one or more of us discussing how the OPM regulations are more restrictive than what the EEOC would say about a medical inquiry being job-related and consistent with business necessity. To sum up the regulations quickly, these are the conditions where a physical examination can be ordered (5 CFR 330.301(b)-(d)):
- The applicant or employee has applied for or occupies a position that has medical standards and/or physical requirements, or is covered by a medical evaluation program.
- An employee who is receiving COP or compensation from OWCP may be required to report for an examination to determine medical limitations that may affect job placement decisions.
- An employee is being released from her competitive level in a RIF. She may be required to undergo a relevant medical evaluation if the position to which she has assignment rights has medical standards and/or physical requirements that are different from those required in her current position.
That’s it. Number 2 is not going to come up that often and Number 3 is exceedingly rare, so the authority to order physical examinations really boils down only to Number 1. That means that for all of the white-collar jobs that don’t have medical standards for their work (like Criminal Investigators, Firefighters, and Air Traffic Controllers do) or physical requirements set in their jobs (like an HR specialist who has to be able to drive a government vehicle to travel to remote sites that he is responsible for servicing), there is no way to require the employee to report for medical examination.
This lack of authority ties management’s hands no matter what kind of problems the employee is having on the job – whether it is an IT Specialist who can’t be regular in his attendance or a technician reporting to duty after a recent diagnosis of MRSA.
Quick Review – Psychiatric Examinations
The regulations on psychiatric examinations (5 CFR 339.301(e)) are even more restrictive. These may only be ordered if the job says you have to be sane to do it, and there aren’t many. Okay, I embellished a little. The regulation says that a psychiatric examination or psychological assessment is part of the medical standards for a position having medical standards or required under a medical evaluation program. What kinds of jobs would these include? Criminal investigators, police officers, and other similar positions.
The only other time that a psychiatric examination can be ordered is when the agency had authority to order a physical exam, and that physical exam doesn’t give an explanation for behavior or actions that may affect the safe and efficient performance of the applicant or employee, the safety of others, and/or the vulnerability of business operation and information systems to potential threats. So, we would be limited to jobs that fall under Number 1 in the prior section for this authority to apply.
A Glimmer of Hope
Imagine my excitement in December when OPM put out proposed 339 regulations. I was hoping that all of the pages of print pointing out that the regulations were too restrictive and prevent agencies from dealing with real workplace situations in an effective way were finally going to bear fruit. It didn’t take long to realize that this was not to be. The final regulations were effective on March 21, 2017. They were caught up in the review of regulations by the incoming administration. Unfortunately, these weren’t stopped. So, the conditions described above for ordering exams are virtually the same as they were before the revision.
What’s the Big Deal?
If you have ever had the unfortunate experience of working on a case where the employee continues to report to work when he is clearly not able to perform, you will appreciate why these restrictive regulations are a problem. When all of the suggesting and brilliant written notices you can come up with have not convinced the employee that something has to be done to resolve the situation, what are you supposed to do?
The Pension Benefit Guaranty Corporation had just such a problem. The case is Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012). Their GS-13 Administrative Officer was exhibiting “unusual and inappropriate behavior.” Through emails and in-person interactions with agency employees, she accused them of breaking into her home, providing information to a transit officer about her location on a train, orchestrating things to happen to her at work and outside of work, listening to her work conversations, communicating with each other at work via earpieces, observing her at work via hidden cameras, and having a hidden agenda toward her.
An Administrative Officer job wouldn’t normally have physical requirements that would have allowed the agency to order a physical exam to rule out physical causes of her behavior. The agency asked a Federal Occupational Health medical professional review the statements. The medical professional determined that the employee exhibited paranoid behavior, could be a danger to herself or others, and should undergo a fitness for duty exam.
PBGC had authority under their union contract to do the examination, and so they sent the employee to be seen by a mental health professional. The answer that came back was that she was experiencing a psychotic delusional disorder and was not fit.
The consequences of ordering that examination must seem never-ending to the PBGC staff. There was another Board ruling in 2016 and an EEOC decision in February of this year on this case. Check back next month for the next chapter. Haga@FELTG.com