Article 38 Physical and Mental Fitness

ARTICLE 38 PHYSICAL AND MENTAL FITNESS

Section 1. Agreed Objective. The parties agree and mutually recognize the importance of continuing physical and mental fitness for members.

Section 2. Physical Examinations. Members agree to undergo physical examinations, by providers of the Department's choice and at its request and expense, no more than once during each year of employment, or whenever a superior officer so requests because of a reasonable belief, based on objective considerations, that there is a legitimate concern as to the member's physical fitness for duty.

Section 3. Determinations of Mental Fitness. Members agree to undergo examinations to determine their continuing mental fitness for duty whenever a superior officer so requests because of a reasonable belief, based on objective considerations, that there is a legitimate concern as to the member's mental fitness for duty.

Section 4. The member shall be entitled to be informed of the reason giving rise to the fitness for duty evaluation. If practicable, the City shall provide notice to the FOP prior to notifying the member that the member will be subject to a physical or mental examination. After examination, upon request, by the member subject to the fitness for duty examination, the City shall grant that member access to read the examination report or summary.

Section 5. Expedited Arbitration.

A. Request Time Limit. Within twenty-four (24) hours after a superior officer's request, under Section 2 or Section 3 of this Article, for an examination, the member to be examined shall be entitled to request, in writing, an expedited determination of his/her objections to the examination by a mutually agreed upon outside party, to hear and determine such disputes under this Article. Absent such a timely, written request, the member will report for the examination as scheduled.

B. Earliest Practicable Hearing. Upon being so notified by the FOP or the City, the mutually agreed upon outside party will hear the matter as soon as possible and in any event within one calendar week from and after the date when the member’s request is presented to the City. Any delay beyond a week will require the consent of the City, the FOP and the member involved.

C. Informal Hearing. This expedited arbitration is separate from and independent of any other arbitration procedure referred to in this Agreement. It shall not be subject to any federal or state statute or act governing arbitrations. There shall be no notice or time requirements or allowances other than as provided in this Article itself, or by the arbitrator in his/her discretion. The agreed upon third party is authorized to set and conduct an informal and expedited hearing and to decide all questions of procedure.

D. Issue. The expedited hearing shall be limited to the issue whether there are objective considerations upon which the superior officer could have a reasonable belief that there is a legitimate concern as to the member’s physical or mental fitness for duty.

E. Decision. The agreed upon outside party shall state his/her decision at the conclusion of the hearing.

F. Appeal or Suit to Vacate. If the agreed upon outside party rules in the City's favor, the officer will report for and undergo the requested examination as scheduled, regardless of any appeal or legal action to reverse, modify or vacate the arbitrator's decision.

Section 7. Disclosure Obligation. It is the obligation of each member, before entering upon the performance of duties on any given day or shift, to disclose to their immediate supervisor, or to another superior officer if the immediate supervisor is not available, the existence of any physical or mental problem, infirmity or deficiency of which the officer is aware, and which could in reason affect his/her fitness for duty during the shift or tour of duty, whether the condition is temporary or permanent. It is also the member's obligation to promptly inform their supervisor whenever the member is under the care of or is scheduled to be under the care of a physician, chiropractor or other health care or medical care provider, if the condition for which care, or treatment is received or sought is one that could adversely affect the member's fitness for duty.