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Fitness for Duty Exam and Federal Employment

By Susan Smith

Friday, September 21, 2007

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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 (Sweeney v. Department of Homeland Security, C.A.F.C. No. 2007-3091 (nonprecedential), 9/11/07)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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Readers' Comments

  • In July 2007 the US Appeals Court for D.C. ruled that a government official cannot order an employee to sign a release if the release does not name recipients of the medical information, see Vickers v. Powell. HIPAA actually stipulates that no release is needed for an FFD. The order was unlawful, t...
    Posted: October 10, 2007 3:31 PM
  • While there are certainly other avenues that could have been used to terminate this employee (and, clearly, termination was warranted), my sense is that the termination via fitness for duty evaluation was appropriate. To my reading of this case, this employee presented a very real threat to others ...
    Posted: September 27, 2007 8:35 PM
  • Yea....The courts do come through for us once in a while. This person was surely hiding something if not willing to sign this document....
    Posted: September 27, 2007 12:29 PM

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