Under Department of Labor Relations/Commonwealth Employment Relations Board precedent a public employer has the nonbargainable prerogative to require employees to undergo fitness for duty examinations. Until recently, however, it was an open question whether the method and means by which these examinations are conducted is a mandatory subject of bargaining. On December 30, 2021, the Appeals Court resolved that question when it affirmed the decision of the CERB in City of Newton v. Commonwealth Employment Relations Board, holding that the employer was required to engage in bargaining over the criteria and procedures for fitness for duty examinations.
The facts giving rise to the dispute first arose in 2016, when the police chief ordered a captain to undergo physical and psychological “fitness for duty” examinations. The order followed a recent uptick in the number of personal days the employee had taken following deaths in his family and a personal injury not related to his work. In response to the chief’s directive the superior officers demanded that the city bargain over (1) the selection of the psychological examiner; (2) the information to be transmitted to the examiner; (3) the testing protocol to be used; and (4) what results were to be generated and to whom the results were to be communicated. When the city refused, the union filed a charge of prohibited practice and ultimately the DLR hearing officer and then the CERB found a violation, following which the city appealed.
The Appeals Court affirmed. Noting that “the decision to order a fitness for duty examination is within the city’s managerial prerogative and is not subject to mandatory bargaining”, it rejected the city’s several arguments regarding the manner in which the examination is conducted. First the city asserted that a bargaining requirement would “unduly impinge on its freedom to perform its public functions.” The court disagreed, ruling that the city’s interest in public safety is not undercut by the requirement that it engage in impact bargaining over the procedures and criteria for examinations. The court added that the city and union had previously engaged in successful negotiations over a drug and alcohol abuse policy, which included standards for initiating testing and testing administration. Next, the city argued that it was insulated from its duty to bargain based on the Civil Service Law, G.L. chapter 31. The court again disagreed, finding no conflict between the two laws and, therefore, that the city’s obligation to negotiate prevailed. Finally, the city argued that the union waived its right to bargain based on certain provisions in the parties’ contract, including the “management rights” clause. Again, the court rejected this argument as well because the agreement’s language failed to show a “clear and unmistakable waiver” of bargaining over the manner and means of determining fitness for duty examinations.
The court summarized by stating the “fact that mere completion of the examinations did not result in [the employee]’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 [his] continued employment.” The court emphasized the “distinction between ordering an examination and the procedures for implementation, e.g., choosing an examiner, and the method and means by which the examination will be carried out”.
Public employers should keep in mind that while the decision to have an employee undergo a fitness for duty examination is the employers to make, how the examination will be implemented must be negotiated with the relevant union. Because in a given circumstance it may be difficult to clearly separate the two concepts, an employer that is uncertain about its obligations should consult with its counsel.
This update is provided for informational purposes only and should not be considered legal advice.