quest that the employer instruct the examiner to agree or to be
sent to a different examiner who is willing to agree. Assuming
that the employer still refuses, the officer then may have little
choice but to object and comply.
If a psychiatric or psychological report is issued concluding
that the officer is not fit for duty, the officer should immediate-
ly pursue one or two examinations from experts of his or her
choosing. (The NJ State PBA LPP maintains a fee schedule for
acceptable psychiatrists/psychologists who can be retained.)
From that point, however, the process can be slow and te-
dious. The officer will probably be brought up on charges of
inability to perform his or her responsibilities, and a hearing
would ultimately be conducted for purposes of determining the
validity of the examination report. Obviously, this can become
an expensive proposition for those officers not participating in
the State PBA LPP. In the end, an administrative law judge will
decide which expert to believe, subject to any appeal to the Civil
Service Commission or another appropriate forum.
While the scope of this article deals primarily with psycho-
logical fitness-for-duty examinations, officers may also be sent
for fitness-for-duty exams due to physical injuries. One addi-
tional consideration of which all officers should be aware is that
under a law passed almost two years ago with the State PBA’s
support, public employers cannot discharge a state, county or
municipal law enforcement officer who is injured while in the
performance of his or her duties based upon a medical exam-
ination performed at the employer’s request. The prohibition
on discharging an officer is contingent, however, upon the of-
ficer applying for retirement. In other words, if the medical ex-
amination finds that the officer is physically incapacitated from
performing his or her duties – or any other duties the depart-
ment is willing to assign the officer – he or she must apply for
retirement in order to avoid discharge.
There are also issues which arise for would-be officers in the
application process. For an applicant for employment as a law
enforcement officer, which includes a mandatory psychologi-
cal examination component, the process is somewhat different.
The removal of an applicant from a Civil Service list generally
does not trigger an actual hearing. Instead, there are specific
procedures in Civil Service law which address these types of ap-
peals. The applicant is limited to a “written record review” by
Civil Service, which may send the matter to a panel of psychol-
ogists who would review the competing reports and determine
whether the employer’s decision to strike an individual from an
eligibility list is appropriate. In some instances, the panel will
request an appearance by the applicant to answer questions,
but otherwise a full adversarial hearing is not available.
Psychiatry remains as much an art as it is a science. Differ-
ent opinions can result from different examiners even when the
same person is asked the same questions and gives the same
answers. This can occur for several reasons, including potential
biases the examiner brings to the examination, or, unfortunate-
ly, who is paying the examiner. In our experience handling such
cases, officers should immediately seek the advice of qualified
counsel as early as possible in order to ensure that the best pos-
sible ground rules are set to avoid or rebut a negative finding.
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