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Fitness for Duty Exam and Federal Employment

by Susan McGuire Smith |

A criminal investigator with the Department of Homeland Security could not convince the Federal Circuit to overturn his firing for refusal to obey an order to sign a medical consent form in connection with a fitness for duty exam. (Sweeney v. Department of Homeland Security, C.A.F.C. No. 2007-3091 (nonprecedential), 9/11/07)

Sweeney’s supervisors at DHS ordered him to submit to a fitness-for-duty exam to recover his weapon due to a “public safety issue.” (Opinion p. 1) Apparently Sweeney’s supervisors were concerned about his harassing phone calls to a co-worker, improper attempts to access a supervisor’s phone records, trying to get a supervisor’s home address and his claims of a conspiracy against him. This is what led them to order up the fitness-for-duty exam. (p. 2)

As part of the process, a supervisor ordered Sweeney to sign a medical release form. He refused. Sweeney was removed for refusing to obey a direct order. (p. 2)

The Merit System Protection Board affirmed Sweeney’s removal. Now, the Federal Circuit affirms, and Sweeney stays fired. (p. 2)

The court was not persuaded by Sweeney’s argument that the agency’s actions violated the Privacy Act and the Health Insurance Portability and Accountability Act (HIPAA). The court points out that HIPAA does not give a private right of action; moreover, it allows employers to require records disclosure in connection with a fitness exam. (p. 3)

In short, the court finds that there was substantial evidence to support the Board’s decision to uphold Sweeney’s firing. (p. 4)

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Susan McGuire Smith

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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