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December 10, 2015Download PDF

Removing A Public Employee Who Is Unfit For Psychological Reasons

Public sector employers, especially those jurisdictions covered by the New Jersey Civil Service Commission, have wrestled with the issue of how to meet the burden of proof necessary to establish that an employee is unfit for duty for psychological reasons. While removal of an employee on the basis of being physically unfit for duty is relatively easy to establish, lack of fitness for duty for psychological reasons is more difficult to prove.

The Civil Service Commission has established standards for removing a prospective appointee from the eligibility list on psychological grounds. However, no such regulations exist to provide guidance for the removal, on a charge of psychological or mental unfitness, of someone who is already an employee.

In In re Vey, 272 N.J. Super. 199 (App. Div. 1993), aff’d, 135 N.J. 306 (1994) the issue of psychological fitness was considered in the context of a candidate for police officer. It was held that in order for a psychological test to be valid and meet the burden of proof necessary to support a disqualification, the test needed to meet three criteria: (1) the employer must specify the trait or characteristic that the test is being used to identify or measure; (2) the employer must establish that the particular trait or characteristic is an important element of work behavior; and (3) the employer must establish that the test actually and accurately evaluates the “important element of work behavior”.

The analysis in Vey has subsequently been cited and applied by Administrative Law Judges and the Civil Service Commission when assessing the validity of an employee’s removal for psychological or mental unfitness for duty. In other words, to establish that an employee is psychologically or mentally unfit for duty, a public employer must identify the following: (1) characteristic or trait at issue; (2) that the characteristic or trait is essential to the employee’s ability to perform his/her essential job functions; and (3) that the test being used to analyze the characteristic or trait is the proper device for accurately performing this analysis.

In serving their citizens, public employers need to ensure that employees are psychologically fit to do their jobs. But public employers also need to ensure that they follow proper procedures in attempting to establish that an employee is not psychologically or mentally fit. Failure to follow the correct process and meet the Vey criteria will most likely lead to a finding that the employer failed to meet its burden of establishing that the employee is psychologically and/or mentally unfit for duty.