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Federal Employees News Digest : Aug 19, 2013
August 19, 2013 Vol. 63, No. 5 5 Visit us on the Internet at www.FederalDaily.com Was indefinite suspension improperly imposed on Navy employee? This week in “You Be The Judge,” a Navy employee appeals his indefinite suspension after having been judged "unfit for duty" for health reasons in the fall of 2011. The employee was on the job when he exhibited symptoms of psychiatric illness, according to mental health professionals who reported to the department. After a period of delay, the department acted to suspend him based on the recommendation of an examining physician. The appellant, whom we will refer to as John Doe,* appealed the indefinite suspension, object- ing that it was not warranted and represented forced unpaid leave time. Doe argued that the law and the facts supported his claim that the indefinite suspension was improper---and that the whole matter should be vacated in its entirety. Should Doe's behavior and medical judgment of his condition stand as adequate grounds for his indefinite suspension from work, which lasted more than six weeks? Or was the Navy's decision to suspend him inadequately supported---and should it be reversed or reduced substantially? Read the details of the case, and consider the law and the precedents. You be the judge. FACTS: Doe was a Rigger Apprentice in a Navy shipyard facility. On June 3, 2011, according to official documents, he “behaved oddly while on duty"---and was described as being found visibly disturbed while "talking to himself " and was "unresponsive when approached." Persons on the scene had him taken to a medical facility. At that facility, Doe was treated with psychiatric medication and, according to official documents in the case, "stabilized." In the course of this process, on June 6, 2011, Doe had one “heated conversation” with a nurse---but that same day his psychiatrist judged him well enough to return to work. On June 7, Doe reported for work and “performed his duties professionally." More than a month later, on July 15, 2011, despite having been returned to duty successfully and without incident, Navy manage- ment notified Doe that he must report for a Fitness For Duty exam. On Aug. 2, he did so. On Aug. 10, a different psychiatrist---the chief of the hospital's occupational-medicine department---found Doe "not fit for duty," and a risk to himself or others. He was ordered to submit to further mental health evaluation by yet another mental health profes- sional in the near future---and was meantime suspended indefinitely. For various reasons, Doe's suspension was not effected until Sept. 24, 2011---and declared in force until he was cleared as fit for duty again. Later, Doe was able to use leave to cover the period in order to draw pay. Next, on Oct. 11, Doe was cleared for some duties, and later still two of the psychiatrists cleared him fully---but effective on two separate dates. The Navy finally restored Doe to duty, effective Nov. 7, 2011. Doe subsequently appealed his indefinite suspension to the Merit Systems Protection Board, without, according to the documents, presenting specific affirmative defenses. An administrative judge found for the Navy, concluding that "adequate grounds to indefinitely suspend the appellant" had been established, "based on legitimate concerns that his medical condition made his continued presence in the workplace dangerous or inappropriate." On the other hand, in Doe’s favor, the AJ found that the appellant should have been returned to duty far sooner---on Oct. 11, the date of the first psychiatric report filed, because it contained "all the documentation needed to return the appellant to work.” In this way, the AJ partially reversed the Navy’s suspension of Doe. But Doe persevered with his case for full reversal. Should Doe's indefinite suspension be fully reversed? DECISION: The full board reconsidered Doe's case, citing Office of Personnel Management regulations that govern when an agency can only offer---rather than order---an employee to submit to a medi- cal exam, as detailed at 5 C.F.R. part 339, subpart C (1989). The panel noted that in many cases, these regulations "significantly" limited previously wider circumstances for ordering mental health exams, having been promulgated specifically to stem "the potential for agency abuse." In the wake of part 339 subpart C, agencies could still order a mental health exam for some job positions. But for other positions--- for instance, when a position did not specify "medical standards and physical requirements"---an agency can only offer, but not order, such an exam. The full board found that, in the present case, under the regulations only an offer (rather than an order) could be issued. The position of Rigger Apprentice simply did not specify medical standards and physical requirements. Hence, a mental health exam order had been issued in error. Finally, the board noted that between Doe’s June 7 return to work and the improper July 15 order for an FFD mental health exam, “there were no other incidents" and hence there existed no objective basis in any case for the order or offer of the FFD exam. Accordingly, the board reversed the indefinite suspension in its entirety. (Merit Systems Protection Board, Docket No. SF-0752-12-0031-I-1, 6/14/13) *Names have been changed, but details are from an actual case.
Aug 12, 2013
Aug 26, 2013