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Public Employers Must Bargain Fitness-for-Duty Examination Procedures

Most public employers are aware that they have the managerial right to order an employee to undergo a fitness-for-duty examination. In City of Newton v. Commonwealth Employment Relations Board, however, the Massachusetts Appeals Court held that the method and means of such examinations are mandatory subjects of impact bargaining.

In 2016, the City of Newton’s Police Chief ordered a Captain to undergo both a physical and a psychological fitness-for-duty examination because he had taken an unusually large number of personal days following a death in his family and a personal injury unrelated to work. The Captain was placed on paid administrative leave pending the results of these examinations. After a meeting with the union, where the Chief insisted that he had the authority to take this action, the Captain complied with the directive, passed both examinations, and was cleared for duty.

The police union then filed a charge of prohibitive practice with the Department of Labor Relations (DLR), alleging that the City had failed to conduct impact bargaining over a number of items related to the means and method of the examinations including:

  • The selection of the psychological examiner;

  • The information transmitted to that examiner;

  • The testing protocol; and

  • What results were to be generated and with whom they were to be shared.

The City had refused to engage in such bargaining, arguing that it was within the public employer’s managerial right to require the examinations and their methods and means. The DLR hearing officer found that the city violated M.G.L. c.150E when it failed to bargain to resolution or impasse. On appeal, the Commonwealth Employment Relations Board (CERB) affirmed the determination that, while the City had the authority to impose the examinations, it needed to bargain over the means and methods. The City appealed.

The Appeals Court affirmed the findings of the CERB, holding that the City was required to engage in impact bargaining over the criteria and procedures for the examinations, particularly since the decision touched upon the terms and conditions of employment. The Court reasoned that “[t]he fact that mere completion of the examinations did not result in [the Captain’s] reinstatement, and that he remained suspended until he had met whatever fitness criteria applied to the examinations, makes the point that the ‘methods and means’ of the decision were critical to the terms of [the Captain’s] continued employment.”

The City made four arguments against requiring impact bargaining over the methods and means of implementing the decision to require a fitness for duty examination. The Appeals Court rejected them all:

  1. The City argued that it had a compelling interest in ensuring the safety and fitness for duty of officers who engage in public safety. The Court held, however, that the interest in public safety is not undercut by the requirement to engage in impact bargaining over the means and methods of the examinations.

  2. The City argued that the requirement to bargain would unduly impinge on its freedom to perform public functions, but the Court held that this requirement does not affect the City’s prerogative to require that its officers be fit and pass fitness for duty examinations. Nor does the requirement to bargain suggest that the examinations would have to be eliminated.

  3. The City argued that it was insulated from its duty to bargain by the Civil Service Law (M.G.L. c.31, §61A), which allows the Commonwealth’s Human Resources Division Administrator to issue health and physical fitness standards applicable to all police officers. The Court rejected this argument, however, noting that the Administrator had never issued such standards to begin with, and further, that there was no conflict between the Civil Service Law and the public bargaining law.

  4. Finally, the City argued that the union waived its right to bargain. The Court disagreed, holding that the collective bargaining agreement did not show a “clear and unmistakable” waiver of bargaining over the method and means of these examinations, and finding that the broad managerial rights clause did not constitute such a waiver.


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