PHYSICAL FITNESS TESTING IN PUBLIC SAFETY AGENCIES
by Matthew Dolan, Attorney
©2014 Matthew Dolan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
Public safety agencies throughout the country are demonstrating interest in requiring sworn personnel to undergo physical fitness tests throughout their career to ensure that they are maintaining a level of fitness that allows them to safely perform their duties in the field.
Recently LLRMI/PATC polled members of the public safety community on issues of mandatory physical fitness testing throughout officers’ careers within their agencies. Within two weeks approximately 2,000 responses were received. The responses represented a significant diversity in agency size—11% of respondent agencies had 0-15 sworn, 27% of respondent agencies had 16-50 sworn, 17% of respondent agencies had 51-100 sworn, 27% of respondent agencies had 101-500 sworn, and 12% had more than 501 sworn officers, with 6% of respondents were unsure or had no response.
When asked, “Does your agency conduct mandatory continuing physical fitness testing throughout an officer’s career?”, 20% of respondents answered yes, 74% answered no, while 6% of respondents were unsure or had no response.
When asked, “Does your agency haven written job descriptions for officers?”, 90% responded yes, 4% responded no, while 6% of respondents were unsure or had no response.
Those respondents who indicated that their agency conducted mandatory physical fitness testing were asked, “How long has your agency conducted physical fitness testing?” 25% responded started less than five years ago, 22% responded started five to ten years ago, 21% responded started more than twenty years ago, while 12% of respondents were unsure or had no response.
Those respondents who indicated that their agency conducted mandatory physical fitness testing were asked, “What are the consequences of failing the mandatory physical fitness?” 38% responded discipline, up to and including termination, 17% responded denial of financial bonus/incentive, 31% responded none (no consequences), while 13% of respondents were unsure or had no response.
Those respondents who indicated that their agency conducted mandatory physical fitness testing were asked, “If an officer fails the physical fitness testing, is he/she given time to become compliant before consequences are applied?” 85% responded yes, 11% answered no, while 4% of respondents were unsure or had no response.
Those respondents who indicated that their agency conducted mandatory physical fitness testing were asked, “Does the testing have differing standards based on age and/or gender?” 50% responded no, 40% responded yes—based on gender and age, 1% responded yes—based on gender only, 8% responded yes—based on age only.
Are public safety agencies conducting mandatory physical fitness testing throughout officers’ careers?
The results of this survey suggest that many are conducting continual testing, although these agencies are by no means in the majority. The majority of those respondents who indicated that their agency conducted mandatory physical fitness testing indicated that their agencies have conducted physical fitness testing for at least five years (63%), and a sizable minority of respondents indicated that their agencies have conducted physical fitness testing for at least ten years (41%).
Job descriptions that clearly require meeting physical rigors of the position.
The overwhelming majority of respondents indicated that their agencies maintain written job descriptions for officers (90%). The maintenance of written job descriptions for officers is vitally important for agencies that are currently conducting physical fitness testing or are contemplating instituting testing. More specifically, it is vital that these descriptions include a clear indication that possessing the ability to meet the physical rigors of the job—apprehending suspects, etc.—in a manner that protects the safety of the officer, their fellow officers safe, and the public they serve.
Without a formal job description outlining physical requirements and the necessity of those requirements, agencies’ employment decisions related to physical fitness testing tend to be less legally defensible when facing legal scrutiny.
“Carrot” approach versus “stick” approach.
Those respondents who indicated that their agency conducted mandatory physical fitness testing were asked, “What are the consequences of failing the mandatory physical fitness?” 38% responded discipline, up to and including termination, 17% responded denial of financial bonus/incentive, 31% responded none (no consequences).
It seems clear that the “carrot” approach of offering incentives rather than discipline is likely to expose an agency to less liability than the “stick” approach. This is not to say that there is not value in disciplinary consequences attached to physical fitness testing. However, agencies contemplating testing would be well-advised to keep in mind that any motivational advantages tying disciplinary consequences to testing failures should be balanced against the increased likelihood of legal challenges resulting from negative employment actions.
Disability and gender discrimination.
In light of the ADA Amendments Act, it seems very likely that obesity and/or impairments related to obesity are extremely likely to be deemed ADA-protected disabilities. This does not mean that this disabled status must be accommodated, but only that agencies must be able to articulate why the condition cannot be reasonably accommodated in light of the essential functions of the job, and that a good faith effort was made to explore the possibility of reasonable accommodation. Also, testing that has a disproportionately adverse effect on officers based on gender will, again, require the agency to articulate why the requirements reflect essential job functions outlined in the job description.
Also, there is some cause for concern that physical fitness testing that has different standards for men and women may expose agencies to discrimination liability under the theory that male officers are being discriminated against based on gender. Although court guidance on this issue is not clear as of yet, this and other factors have led many agencies—including 50% of survey respondents—to adopt a policy of requiring the same standards for the same position, regardless of the individual’s gender.
There is existing case law indicating than an officer exercising on his or her own time in order to meet the physical fitness standards of the agency and is thereby injured may be eligible for worker’s compensation. Agencies should be aware of the possibility that mandatory physical fitness testing may result in an increase in exercise-related injuries both during the testing itself as well as in the course of testing preparation. These injuries, and the worker’s compensation and loss of manpower that accompanies them, should be balanced by agency leaders against the benefits of the testing.
There are still many unanswered questions concerning public safety agencies and physical fitness testing. But the results of this survey indicate that numerous agencies of varying size throughout the country are conducting some form of physical fitness testing intended to ensure that officers are able to meet the physical challenges essential to the job. However, the results also indicate that agencies are taking distinct approaches to the testing, presumably in light of both substantive considerations as well as legal ones. Whatever the approach adopted by an agency, legal risks are involved. Agencies should be aware of the varying risks and potential benefits associated with physical fitness testing before instituting or altering their physical fitness policies.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.