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Fitness for Duty and Occupational IMEs
By Sanjay Adhia, M.D.
An employee exhibits signs of mental health struggles impacting job performance and/or coworkers.
What can HR do?
An introduction to Fitness for Duty and other Occupational or Employment IMEs
I am asked to conduct occupational or employment psychiatric evaluations, or IMEs, (Independent Medical Exams). Most commonly, the focus is Fitness for Duty or Disability. Fitness for Duty is the ability of a person to perform the essential functions of their job.
Definitions and Acronyms
IMEs are sometimes also called NMEs (Neutral Medical Exams). Fitness for Duty, Disability evaluations, Worker’s Compensation (WC) and Defense Base Act (DBA) exams fall under Occupational or Employment evaluations.
Who Initiates a request for a Psychiatric Exam of an Employee?
Employers and HR
Human Resources professionals are the most likely referrer for a Fitness for Duty exam. Managers and coworkers are most likely to report concerning behavior to HR. A counselor in an in-house Employee Assistance Program (EAP) is another frontline referrer. Both may observe an employee’s performance, absence from work or other concerns described below.
ADA and Policy
Requests for accommodations are usually made to HR and can include psychiatric disability. Psychiatric disability is best determined by a Forensic Psychiatrist while the law and compliance is addressed by an attorney. Note that terms like HR and Employer includes those in private business, Federal or State employers, Military, Municipalities, School Districts, Police Departments and other job settings.
Employees and Contract Consultants
Increasingly workers are paid as consultants vs. salaried or hourly employees. Employers may manage the distinctions differently. Internal Policy and legal considerations are relevant. For simplicity, I use the term “coworker” to include contract consultants inasmuch as they may be working side by side with salaried employees. In either event, coworkers sharing a brick-and-mortar or virtual workspace can be impacted by the mental health of another coworker. The employer should confer with counsel to determine their legal and ethical obligations to both the employee/consultant and the coworkers impacted by that person’s behavior. Risk of violence and Threat Assessment are not the focus of this article. If dangerousness in an employee or contract consultant is a concern for an employer, seeking a Forensic Psychiatrist with threat assessment training should not be put off.
Usually in-house counsel or private counsel for the employer are the legal resource for an employer, if there is a legal issue or the potential for employment litigation.
Physicians treating a workers’ compensation complainant, Flight Surgeons and Doctors associated with an Employee’s internal clinic or Employee Assistance Program are examples of Occupational Doctors. As a treating physician, they are trained to consider psychiatric conditions, and refer the patient to a Forensic Psychiatrist if indicated.
Employer Medical Director
Large employers may have an entire division of HR that addresses the health and well-being of employees. Governments, municipalities, utilities, the military, may have a protocol for referring for an FFD and a Medical Director is closely involved with the decision. In the case of an Employee Assistance Program (EAP), a referral to a Forensic Mental Health professional may bump up a chain of command beginning with the licensed mental health professionals serving in the EAP, like LCSWs, Nurses, and Counselors. Employers have internal systems for recommending an FFD, but it can begin with EAP staff being alerted by the employee or coworkers that they believe a problem exists. The Medical Director may have to give final approval after reviewing the situation, depending on the size of the EAP and its procedures.
Fitness for Duty
In Fitness for Duty or FFD exams, the employer has a concern about an employee’s ability to do their job because of a psychiatric condition or emotional behavior that is out of character.
The employer believes the employee is best assessed by a psychiatrist. Employers will call me to consult about the concern and I may recommend a psychiatric evaluation.
“Psychiatric Disability” can be linked to the Americans with Disabilities Act (ADA) or Disability Policy Insurers. “Disability” is also used generically to mean a person is unable-disabled.
With my expertise, I can determine disability in regard to psychiatric disorders, substance use disorders and brain injury.
You may recall a time when the boss requested a doctor’s note if you were on medical leave or sick leave for several days. What happens when you are ill for months or years? An employer may request a more detailed and non-biased IME from a neutral and unconflicted doctor.
Red Flags for the Employer
Is a Fitness for Duty Assessment Indicated?
Here are a few situations when an employer might want to request a FFD or a consultation with a Psychiatrist with FFD experience.
The most relevant feature is when an employee’s behavior or performance undergoes a significant change. Taken separately, an employee may exhibit any one of these “flags” and nothing is wrong. I am asked to conduct Fitness for Duty evaluations to help determine if that is the case.
- Unable to behave appropriately with co-workers or customers. Coworkers are often the first reporter when someone is out of line, awkward, angry or sharing Too Much Information.
- Unable to work safely and efficiently. E.g. Being less attentive can be a symptom of depression.
- Displays a significant change in behavior or mood that interferes with the ability to do his or her job. For example, an employee begins to talk too loudly, too fast, interrupting and disrupting others’ work. These can be symptoms of bipolar disorder or another psychiatric disorder.
- More time off than usual should be taken seriously. Consider if this is a change for the employee.
- Resists learning new skills or adapting to changes in their job and the expectations of managers.
What does it mean when an employee “resists” learning new skills?
“Resistance” can be the person’s personality or a very different diagnostic Personality Disorder. They may simply be reluctant, or fearful of failing where the skillset is daunting to them, or it can be something more serious.
I am also sensitive to the possibility of a Neurocognitive Impairment—restrictions on the brain’s ability to process and manage information. This can impact learning, acquiring new skills, adjusting to new performance expectations, or adapting to shifts in employer established protocols. On the job, or off the job brain injury, concussion, Traumatic Brain Injury (TBI), dementia, substance use disorder or medical disorder can be at play.
Substance Abuse: Safety
- An employee has not requested sick leave but the employer is concerned that a substance use disorder is present.
- The employee’s focus or motor reflexes have shifted from the past.
Scheduling a Fitness for Duty Assessment: Next Steps
A Fitness for Duty evaluation starts with an employer or other occupational referrer contacting me to talk about their concerns.
I am not a treating physician and I am not bound by doctor-patient confidentiality. I make this clear before an assessment. I require an Informed Consent from the examinee/employee. HIPAA releases are usually necessary for an employee’s own doctor to release records to the employer or me, as an independent third-party non-treating doctor. All references here to HIPAA protections are regarding the employee’s treating physicians, not my role.
Prior to conducting my assessment, the employer or attorney who has retained me might send
- A job description. Fitness for Duty is the ability to perform the essential functions of one’s job. It is essential to know those “essential functions,” thus the need for a job description.
- Personnel file. A personnel file may include performance evaluations which, over time, can reveal significant changes in an employee which flagged a FFD. Valuable information in a Personnel file may include complaints or concerns expressed by co-workers, disputes, and manager recommendations.
- Medical records, if the employee signs a Release under HIPAA so their physicians can supply records to me.
- Release under HIPAA. I must have the original signed Release prior to reviewing medical records–again, because the examinee/employee is providing me with their own protected medical records.
- Verbal or written consultation with other doctors including a doctor treating the employee for a psychiatric or relevant condition. Again, HIPAA requires that the employee authorize me to speak with their therapist or physician in a signed document.
- Authorization to release my findings to the employer under HIPAA. I require an original signed authorization and release to report my medical findings to the employer.
Treatment and Return to Work
Once my Fitness for Duty evaluation is concluded, I may make treatment recommendations and answer any other questions the referral source may have. I am not the treater and I will not have a treatment role.
After treatment is completed, I am sometimes asked to conduct a follow-up FFD to determine if the treatment was successful such that the employee can “Return to Work,” a common name of the evaluation.
Maximum Medical Improvement and Return to Work
What is Maximum Medical Improvement (MMI)?
MMI is when an injured employee reaches a state without further possible improvement or a treatment plateau is reached. I consider if an employee has reached MMI as a feature of issuing a Return to Work approval.
WC Physical and Mental Injuries can lead to Pain Management with Addictive Medications
For example, severe physical injuries sometimes require prescription opioid pain management, like Ocycontin or Fentanyl which are at risk for addiction.
The claimant who is “self-medicating” may develop an affinity for something difficult to treat like an IV heroin addiction.
Mental injuries are no different, though the path to treatment is not the same as a physicial injury.
In the case of Workers’ Compensation cases, I am retained as a private examiner. In WC this can be attorneys for the employee/applicant or employer’s WC insurer. I am retained by reputation and credentials. In some states, however, WC evaluators are regulated. In California, for example, most WC evaluators are required to have special certification and serve on a restricted panel.
On the job Injuries
WC cases involve workplace injury. These evaluations are similar to personal injury evaluations where you determine causation and damages. On the job injuries are often physical with co-occurring illnesses such as depression or PTSD. Pain management can also factor, as well as concerns about addiction to pain medications.
State by State
Each state has laws about who can conduct a WC evaluation and scope of the exam. In some cases special certification is required. In many states, any private examiner may be retained to conduct a Worker’s Compensation evaluation.
A Workers’ Comp Case Study
I performed an IME on one WC claimant who worked as an orderly in a psychiatric hospital. She was attacked by an agitated patient and developed severe PTSD as a result. Due to avoidance and re-experiencing symptoms, she could no longer work in psychiatric facilities.
In this WC case, PTSD could have co-occurring physical injuries such as Traumatic Brain Injury. It would be wise to retain a physician with appropriate expertise.*
Fitness for Duty Scenarios
Firearms and Safety
One exam I conducted involved a federal law enforcement trainee who exhibited manic (hyper) symptoms that could have been made worse or caused by anti-depressant medication. (This would be a good example of a case where you would retain a forensic psychiatric physician instead of a psychologist.) (Learn more)
There was a concern if this police officer should be carrying a firearm to work. The first evaluation with the employee was not conclusive because the examinee was minimizing symptoms, essentially stating things were not “as bad as they looked.” Initially, the medical director of the employer did not permit collateral interviews, usually a conversation I have with someone like a family member who might have a different observation or perspective on the examinee’s behavior. Later, I convinced the Employer of the need for collateral interviews and it substantially affected my opinion. The employee had several road rage incidents, was agitated and volatile. I determined a reexamination was necessary considering this information.
Public safety is a significant concern when addiction is interfering with an employee’s ability to maintain the safety of others. An impaired surgeon or pilot who has Opioid Use Disorder or Alcoholism, for example. Such substances can interfere with alertness, judgment, attention and other neurocognitive domains.
How would you feel if a psychiatric condition interfered with the good judgment of an air traffic controller, police officer or someone working in an oil refinery? These occupations are a few that involve high risk to the public and suggest an equally high degree of stability in an employee.
Airline Pilots and the FAA, Fitness For Duty Concerns
In a 2015 study of airline pilots completing an anonymous survey was reported in the peer-reviewed Journal Environmental Health. 13.5% of respondents reported symptoms that met a dignostic thresshold for Depression. 4.1% reported suicidal thoughts. From a public safety point of view, the stakes are high but the likelihood of danger are low.
If you fear flying, the information reported here is not intended to alarm you.
Many factors are associated with Depression and Suicidal Ideation (making a plan for committing suicide–considered an extremely high risk symptom). Interestingly, there were associations with sleep medications, and on the job harassment, especially sexual harassment. The relationship between Depression and Sleep Deprivation is well-documented.
The Federal Aviation Administration is tasked with ensuring public safety regarding Pilot health. A Fitness for Duty evaluation is especially important if there is a suspicion of mental illness that might impact a pilot’s ability to perform their job.
“I’m just a broken guy.”
I recall the sad case of the suicidal pilot of Germanwings Flight 9525 “French investigators ruled the crash “was due to the deliberate and planned action of the co-pilot, who decided to commit suicide while alone in the cockpit.” In 2018, a pilot crashed his (empty) plane in Seattle saying “I’m just a broken guy.”* While suicide in the air is rare, suicide in high-stress professions, like airline pilots, is not as rare.
*Jansen, Bart. “’Just a Broken Guy’: Suicidal Plane Crashes Exceedingly Rare.” USA Today, Gannett Satellite Information Network, 11 Aug. 2018, www.usatoday.com/story/news/2018/08/11/seattle-tacoma-international-airport-plane-crash-rare-suicide/96598400
Harvard researchers Alexander C. Wu, Weisskopf, Allen, et al., published findings in Journal, Environmental Health
One DBA exam I performed involved a female contractor who had PTSD, depression and anxiety after experiencing multiple traumas including receiving rocket and gunfire, witnessing a suicide bomber and attempting to prevent blood loss in an injured colleague. I rendered an opinion on Causation, Fitness for Duty and Maximum Medical Improvement (MMI). I found she was ready to work in a non-combat setting.
Defense Base Act (DBA), Longshore and other related exams
Federal Law requires all government contractors and subcontractors to provide WC insurance for those working overseas. Defense Base Act evaluations are basically workers’ compensation for private military contractors.
Private military contractors in Iraq and Afghanistan may put employees in combat zones, and subject to the same dangers as military personnel. I have examined quite a few DBA claimants. Common injuries include depression, anxiety or PTSD. TBI (Traumatic Brain Injury), concussions (mild TBI or mTBI) or Potentially Concussive Events (PCEs) could be the result of blunt trauma, penetrating trauma or blast injuries. Some contractors, particularly female contractors, may have been exposed to Military Sexual Trauma (MST) which can cause PTSD. Repetitive trauma could result in complex PTSD. Complex PTSD (C-PTSD) is not a DSM 5 diagnosis yet it is recognized by some experts.
Employers may be alerted by the primary indication of an issue: a change in the employee that isn’t attributed to another factor, like a life-changing event.
Objective Evaluation. A Forensic Psychiatrist is trained to conduct an objective evaluation, free of bias.
Employment Ramifications. Fitness for Duty evaluations may lead to employer decisions that have legal ramifications.A Clinical Psychiatrist is trained in the diagnosis and treatment of psychiatric disorders.
Employment Evaluations by a Qualified Evaluator. A Forensic Psychiatrist, on the other hand, has specific Board-Certification and fellowship training in the interface of psychiatry and law.
This specialization means a Forensic Psychiatrist can render an opinion more likely to withstand legal scrutiny should that occur, while simultaneously allowing the evaluator to recommend treatment and actions the employer can take to make the best decisions for the employee and coworkers. Clinical Psychiatrists are trained in the diagnosis and treatment of psychiatric disorders.
- “Airplane Pilot Mental Health and Suicidal Thoughts: A Cross-sectional Descriptive Study via Anonymous Web-Based Survey,” Alexander C. Wu, Deborah Donnelly-McLay, Marc G. Weisskopf, Eileen McNeely, Theresa S. Betancourt, Joseph G. Allen, Environmental Health, online December 14, 2016, doi: 10.1186/s12940-016-0200-6