Fitness for Duty Policy - Human Resources Policy - 40350

To establish policy and procedures by which colleges and agencies can determine an employee’s fitness for duty to perform the job in a safe and effective manner. Application of this policy is not intended as a substitute for college or agency policies, or procedures related to chronic performance issues, general behavioral problems, violence prevention and threat assessment, or as a substitute for discipline pursuant to other policies.

A. The Virginia Community College System strives to provide a safe and productive workplace. Employees are expected to report to work in the appropriate mental and physical condition to perform their jobs in a safe and satisfactory manner and remain able to do so throughout the workday. Employees who are not fit for duty may present a safety hazard to themselves, to others, and to property.

B. This policy and procedures apply to all full time and part time employees, regardless of status, title, or working location, of the Virginia Community College System college and agency locations. Colleges and agencies may develop policy or procedures that provide additional guidance or requirements as needed.

C. This policy covers only those situations in which an employee is (1) having observable difficulty performing the work duties in an effective manner that is safe for the employee and/or for the employee’s co-workers, students, and the public, or (2) poses a serious safety threat to self or others. This policy does not apply to communicable diseases or health conditions that cause impairment which does not affect job performance.

D. Employees are expected to perform essential job functions in a safe and effective manner, while in the workplace, teleworking, or while on call, and to discuss with their supervisor any circumstances that may impact their ability to do so. The college or agency may require professional evaluation of an employee’s physical or mental capacities to determine the employee’s ability to perform essential job functions. Such evaluations are conducted by an independent, licensed health care professional. Human Resources in collaboration with the Coordinating Team (VCCS HR Consultant, supervisor, department manager, respective executive leader, and system counsel) will determine if a fitness for duty evaluation (FFDE) is appropriate. If an FFDE determines areas of unfitness, the evaluator may refer the employee to treatment providers or recommend a course of treatment. The employee will not be permitted to return to work until a health care provider of the employee’s choice certifies the employee’s compliance with medical treatment and current fitness to perform the employee’s essential job duties with or without reasonable accommodation.

E. The employee is not responsible for paying the cost of an FFDE if mandated to have one under this policy. However, the employee would be responsible for paying the cost of any follow up treatments, if applicable. Additionally, to the extent allowable by law and policy, the college or agency Human Resources shall protect the confidentiality of the evaluation and its results. Results will only be shared with those that have a need to know them.

F. Supervisors shall continue to address performance or behavioral problems through the performance planning and management process and implement appropriate corrective or disciplinary action. An employee’s non-compliance with a directive for an FFDE may be cause for formal disciplinary action.

G. The results of FFDEs performed by qualified, licensed health care professionals shall be presumed to be valid. Neither the requirement of the employee to participate in an FFDE nor the results of the FFDE are grievable or eligible for alternate dispute resolution by teaching and administrative/professional faculty.

H. After an FFDE, information given to the employee’s supervisor shall be limited to whether the employee may:

     a. return to full duty;

     b. not return to full duty, in which case the employee will be referred to VCCS/College Human Resources for a benefits discussion; or

     c. return to full duty with reasonable accommodations to meet the evaluator’s recommendations.

The following definitions apply to the words and phrases as used in this policy and/or procedure.

Coordinating Team: A team comprised of appropriate college or agency leadership in the employee’s reporting structure (e.g., supervisor, department manager, respective executive leader), VCCS system counsel, VCCS HR Consultant and Human Resources that is responsible for determining whether an FFDE is appropriate. This is an ad hoc group that comes together for the specific purpose of addressing issues related to the employee’s fitness for duty. Human Resources should lead this group once the group is convened and ultimately the determination is made by the Coordinating Team. Additional individuals such as campus police or others might be contacted where circumstances deem it appropriate.

Employee Assistance Program (EAP): A program provided by the Commonwealth of Virginia to persons enrolled in the health benefit program that provides comprehensive, confidential, employee assistance services (such as short-term counseling, assessment, and referral services) to covered College/agency employees and their families.

Fitness for Duty (FFD): Possessing the physical and mental capacities to perform the essential functions of an employee’s job safely and effectively, with or without reasonable accommodation for disability, in a manner that does not present a threat of harm to self or others. Fitness for duty includes, but is not limited to, being free from alcohol- or drug-induced (whether legitimately prescribed, illicit, or over the counter) impairment that affects the employee’s ability to perform the essential functions of the job.

Fitness for Duty Evaluation (FFDE): A professional assessment of an employee’s physical or mental capacities that is carried out by an independent, licensed health care provider with expertise to determine whether an employee is capable of safely and effectively performing essential job functions.

Confidentiality/Privacy of FFDEs: Records of FFDEs shall be confidential and maintained in a separate employee benefits/medical file in the College’s Office of Human Resources. Medical information is not retained in the employee’s official personnel file. Information shared with the Coordinating Team will be limited to a need-to-know basis.

Retention: Records of FFDEs must be retained and subsequently destroyed in compliance with the Library of Virginia’s (LVA) Records Retention and Disposition Schedule.

These procedures provide employees and college or agency leadership with guidance and practical steps to implement the actions set forth in this policy and with respect to a fitness for duty evaluation (FFDE).

Employees’ Responsibilities:

1. Reporting to work fit for duty (physically and mentally) and remaining fit for duty the entire time working, teleworking, or while on call.
2. Promptly notifying the supervisor/manager if not fit for duty and requesting and utilizing available leave as appropriate under applicable policies when unable to report to work fit for duty.
3. Promptly notifying the supervisor/manager upon observing a coworker who may be unfit for duty. If the supervisor’s behavior is the focus of concern, an employee may inform the upper-level manager or Human Resources. The Employee Fitness for Duty – Initial Observation Form may be used by Human Resources or upper-level management to document the incident.
4. Employees must report to work unimpaired, including by but not limited to drugs (legal or illegal) or alcohol. Individual agencies may have additional compliance policies or requirements regarding drug or alcohol impairment.

Managers/Supervisors’ Responsibilities:

1. Observing and documenting the attendance, performance, and conduct of the employees they supervise.
2. Following these procedures when presented with circumstances or knowledge that indicates that an employee may be unfit for duty.
3. Utilizing these procedures in a fair and consistent manner, respecting the employee’s privacy and the confidentiality of medical information.
4. Coordinating with Human Resources throughout the handling and management of the fit for duty employee case, to include the employee’s return-to-work or separation of employment.

1. The supervisor who receives fact-based information that an employee may be unfit for duty, or through personal observation believes an employee to be unfit for duty, will promptly contact Human Resources for guidance and document the information or observations as soon as is practicable. Human Resources will then promptly contact the VCCS HR Consultant for further guidance. Actions that may trigger the need to evaluate an employee’s fitness for duty include, but are not limited to, problems with dexterity, coordination, concentration, memory, alertness, vision, speech; inappropriate interactions with coworkers, supervisors, students, or the public; or suicidal or threatening statements (refer to #4 below). Supervisors/Managers should complete the Employee Fitness for Duty – Initial Observation Form.

2. The supervisor, with Human Resources, will notify the employee as soon as possible about the reported conduct and will allow the employee the opportunity to provide any relevant information in response. The supervisor and Human Resources will meet with the employee to:

      a. explain the observed behaviors or impairment preventing the employee from performing the job duties;

     b. advise the employee of whether there will be any next steps, which could include a requirement to participate in an FFDE;

     c. advise the employee to maintain communications with supervisor and Human Resources if required to participate in an FFDE; and

     d. document the employee’s response from the meeting.

     e. The supervisor and Human Resources will confirm a safe transportation plan for the employee, if necessary.

3. The supervisor in consultation with Human Resources and the HR Consultant will then determine whether the employee should be placed on administrative leave pending the completion of all steps under this policy.

4. If there is a basis to think that a crime may have been committed, if the employee is making threats of self-harm or harm to others, or if the employee is acting in an unsafe manner toward self or others, the supervisor shall contact law enforcement and make a referral to the Threat Assessment Team.

5. Human Resources will share the results of the meeting with the Coordinating Team. If the Coordinating Team determines that a FFDE is appropriate, Human Resources will follow up with the employee and provide written notification (letter generated by college HR) to the employee of the decision.

6. Human Resources will coordinate the initial FFDE appointment with the employee and the evaluator using the college’s list of workers’ compensation medical providers or another designated provider as appropriate. The college/agency will select the appropriate evaluator. Human Resources will provide the evaluator with a copy of the employee’s position description, physical demands worksheet, and other descriptors needed to comprehensively explain the employee’s job. Human Resources will also provide the employee with Employee Assistance Program resources in order to secure additional benefits assistance if eligible for those benefits.

7. The FFDE will be performed by an impartial, independent health care evaluator with appropriate expertise.

8. An employee referred for an FFDE should be placed on paid administrative leave for a finite and predetermined time period pending the completion of the evaluation. This paid administrative leave may be extended or retracted at the colleges or agency’s discretion as needed to accomplish the evaluation. Adjunct and wage employees will be put on leave without pay.

The employee shall not be permitted to return to the workplace or perform work off-site until the certification of fitness is received. Non-compliance with a request for a FFDE may be cause for disciplinary action.

9. In all cases, the College/agency must receive a completed FFDE evaluation and report from the independent evaluator. The employee may not return to work until the evaluation is received and reviewed by the agency for appropriate next steps. Upon receipt of the evaluator’s report, a transition meeting will be conducted by the Coordinating Team to determine next steps:

     a. If the employee is released to return to work (RTW), Human Resources will provide written communication to the employee with a return date.
 
     b. The employee will be required to follow the medical recommendations and referrals of the evaluator as a condition for returning to work. Documentation from treating providers will be required as directed by the agency to ensure that treatment recommendations (if such were made) are being followed. The college is not entitled to any medical details of those recommendations or treatments related to the Fitness for Duty Evaluation.

     c. The Supervisor should meet with the employee, if necessary, to reiterate duties, expectations and behaviors required of the position.

     d. If the employee is not able to return to work, Human Resources should discuss appropriate benefit options with the employee.

10. These procedures are not intended as a substitute for other Department of Human Resource Management, Virginia Community College System, or specific agency or college policies or procedures related to job performance. In addition, application of these procedures is not a substitute for discipline. In any situation involving misconduct, formal disciplinary action(s) may occur.

The college’s/agency’s Office of Human Resources is responsible for the official interpretation of this policy. Questions regarding the application of this policy should be directed to Human Resources.

Employee Fitness for Duty – Initial Observation Form 

DHRM Policy 1.60 - Standards of Conduct

DHRM Policy 1.05 – Alcohol and Other Drugs

DHRM Policy 4.20 – Family and Medical Leave