Fitness for Duty Evaluation Expert Witness
Dr. Mendonsa works as a fitness for duty evaluation expert witness for agencies, employment counsel on both sides, and risk managers — conducting defensible evaluations of sworn and security-sensitive personnel, and reviewing evaluations that are already being litigated.
A fitness-for-duty evaluation is a functional examination of a current employee: can this person safely and effectively perform the essential functions of this job now. It is governed by a stricter standard than a pre-employment screening, because the ADA permits an examination of an employee only where it is job-related and consistent with business necessity.
A fitness for duty evaluation expert witness is retained for one of two reasons: an agency needs an examination that will hold up, or a party needs someone to take apart an examination that has already been done. Both turn on a single distinction, and most of the litigation in this area comes from blurring it. A pre-employment psychological screening is a suitability judgment about an applicant. A fitness-for-duty evaluation is a functional judgment about an incumbent, ordered because something happened.
The timing rule is statutory. Under the ADA an employer may not conduct a medical examination or make disability-related inquiries of an applicant before an offer, but may require one after a conditional offer, provided all entering employees in the same job category are examined and the results are kept in separate, confidential files. 42 U.S.C. § 12112(d)(2)–(3); 29 C.F.R. § 1630.14(a)–(b). California’s Fair Employment and Housing Act runs parallel. Gov. Code § 12940(e); 2 Cal. Code Regs. § 11071.
For a current employee the threshold is higher. The examination must be job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); Gov. Code § 12940(f). The EEOC reads that to require a reasonable belief, grounded in objective evidence, that a medical condition will impair the employee’s performance of essential functions or that the employee will pose a direct threat — a significant risk of substantial harm that reasonable accommodation cannot eliminate, assessed individually against duration, nature and severity, likelihood, and imminence. 29 C.F.R. § 1630.2(r). An order resting on rumor, on a personality conflict, or on a diagnosis by itself is the first thing opposing counsel attacks.
California peace officers
Sworn candidates add a layer. Gov. Code § 1031(f) requires that a peace officer be found free from any physical, emotional, or mental condition — including bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation — that might adversely affect the exercise of peace officer powers, and it specifies who may make that finding and what POST training they must have completed. POST’s own regulation requires the psychological evaluation to commence only after a conditional offer, to be conducted under the POST Peace Officer Psychological Screening Manual, and to be completed within one year before the date of employment. 11 Cal. Code Regs. § 1955. The IACP Police Psychological Services Section publishes the professional guidelines both sides cite — Pre-Employment Psychological Evaluation Guidelines (2020) and Psychological Fitness-for-Duty Evaluation Guidelines (2024). They are advisory, not law, which is exactly why departures from them get argued rather than assumed.
What the employer is entitled to
The referral question defines the examination and should be in writing before it starts. What comes back is a fitness opinion and any functional limitations or restrictions — not the clinical file. In California the Confidentiality of Medical Information Act limits disclosure to a description of functional limitations without the statement of medical cause, Civ. Code § 56.10(c)(8)(B), and Pettus v. Cole (1996) 49 Cal.App.4th 402 enforced that limit against clinicians who sent an employer the full narrative. A diagnosis is not a finding of unfitness and the absence of one is not a finding of fitness; the opinion is about function against the duties of the specific position, not about a label.
What a defensible evaluation is built on.
Each component exists to answer the referral question and to survive the cross-examination it will draw.
The written referral question
The objective evidence prompting the referral, the essential functions at issue, and the specific question asked. An evaluation that drifts past its referral question is the easiest one to impeach.
Scope · Essential functionsRecords and collateral
Job description, incident and supervisory reports, performance and training history, prior evaluations, and relevant treatment records where properly obtained. Work context is the reference point, not an aside.
Duty file · Incident · PerformanceStructured clinical interview
A forensic interview anchored to duties and to the triggering conduct, conducted with notification of the non-confidential, employer-referred nature of the examination on the record.
Notification · Duty-anchoredObjective personality testing
Broadband measures interpreted against the demands of the position rather than against a general clinical baseline, with normative limits stated where they apply.
MMPI-3 · PAIResponse style and validity
Employment examinations create incentives in both directions. Response validity is assessed explicitly and reported, whichever way it points.
SIRS-2 · TOMMRisk and direct threat
Where safety is genuinely at issue, structured violence-risk methodology and an individualized direct-threat analysis on duration, severity, likelihood, and imminence.
HCR-20 · 29 C.F.R. 1630.2(r)How a fitness-for-duty engagement runs.
The referral question is settled first, in writing, because everything downstream is measured against it.
Referral and scope
A call with counsel or the agency to identify the objective evidence behind the referral, the essential functions in question, the governing memorandum of understanding or policy, and the deadline. The referral question is confirmed in writing before any record is reviewed.
Records review
Job description and duty statement, incident and supervisory documentation, performance and training history, prior evaluations, and any properly authorized treatment records. Gaps are identified before the examination rather than after.
Examination
Notification of the employer-referred, non-treating nature of the examination and of the limits on confidentiality, followed by structured interview, objective testing, and response-validity assessment. Collateral contacts where the referral question requires them.
Report to the referral question
A written report answering what was asked: fitness, any functional limitations or restrictions, prognosis and reassessment interval where relevant, and the basis for each. Clinical detail beyond what the employer is entitled to receive stays out of the employer copy.
Review or rebuttal of another examiner
Where retained to critique, the analysis covers the legal basis for the order, the fit between referral question and examination, instrument selection and interpretation, the diagnosis-versus-fitness distinction, and whether disclosure exceeded what the employer was owed.
Deposition, hearing, and arbitration
Preparation with counsel and testimony in civil litigation, administrative hearings, and labor arbitration, where the record and the procedural posture often matter more than the clinical findings.
The background this opinion rests on.
Public safety systems from the administrative side, and the enforcement side of the licensing board.
Fitness-for-duty questions counsel ask.
When can we order a fitness-for-duty evaluation without creating an ADA claim?
When the examination is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); Gov. Code § 12940(f). In practice that means the agency can point to objective evidence — observed conduct, a documented incident, a performance pattern, a credible safety report — supporting a reasonable belief that a medical condition is impairing essential functions or creating a direct threat.
Write the basis down before the order issues. The contemporaneous memorandum explaining why the agency ordered the examination is usually more important to the defense than the examination itself.
What is the difference between a pre-employment screening and an FFDE?
A pre-employment psychological screening is conducted after a conditional offer and before employment begins. It asks whether an applicant is psychologically suitable for the position, and under the ADA it is permissible only if every entering employee in that job category is screened. 42 U.S.C. § 12112(d)(3); 29 C.F.R. § 1630.14(b). For California peace officers it is also governed by Gov. Code § 1031(f) and 11 Cal. Code Regs. § 1955, which set who may conduct it, the required use of the POST Peace Officer Psychological Screening Manual, and a one-year currency limit.
A fitness-for-duty evaluation is an examination of a person who already holds the job, triggered by something specific, and judged against the higher business-necessity standard. Applying screening logic to an incumbent, or FFDE logic to an applicant, is a recurring and expensive error.
How much of the evaluation does the employer get to see?
The fitness opinion and the functional limitations or restrictions that follow from it. Not the clinical narrative. The EEOC’s position is that an employer is entitled only to the information necessary to determine whether the employee can perform essential functions without posing a direct threat, and in California the Confidentiality of Medical Information Act permits a description of functional limitations while withholding the statement of medical cause. Civ. Code § 56.10(c)(8)(B).
Pettus v. Cole (1996) 49 Cal.App.4th 402 is the cautionary case: clinicians sent the employer a full account of family history, drinking, and hostility toward management, and the court held that this exceeded what the statute allowed. Over-disclosure converts a defensible evaluation into a separate cause of action.
Our examiner diagnosed a condition. Does that settle it?
No. A diagnosis is a clinical classification; fitness is a functional conclusion about whether this person can safely and effectively perform the essential duties of this position now. Employees with diagnoses are frequently fit, with or without accommodation, and employees without any diagnosis are occasionally unfit.
Where unfitness is claimed on safety grounds, the analysis has to be an individualized direct-threat assessment addressing duration, nature and severity, likelihood, and imminence, and whether reasonable accommodation would eliminate or reduce the risk. 29 C.F.R. § 1630.2(r). A report that names a condition and stops has not answered the question the agency asked.
How are these evaluations usually attacked in litigation and arbitration?
On the order first: no objective evidence, pretext, retaliation for protected activity, or an order used as a substitute for discipline. Then on the examination: scope that wandered past the referral question, instruments selected or interpreted without regard to the occupational context, no response-validity analysis, collateral information taken at face value, or a treating relationship confused with an evaluative one.
Then on the output: a diagnosis offered as a fitness conclusion, a direct-threat claim with no individualized analysis, restrictions with no stated basis or no reassessment interval, and disclosure beyond what the employer was entitled to receive. In California peace officer arbitrations the procedural posture matters as much as the clinical work, including the protections of the Public Safety Officers Procedural Bill of Rights Act, Gov. Code § 3300 et seq., and the applicable memorandum of understanding.
Do you evaluate non-sworn roles, and do you need a license in our state?
Yes. Law enforcement, fire, dispatch, and other security-sensitive positions all raise the same functional questions, though the governing standards differ — POST requirements reach California peace officers, while a private security-sensitive role is governed by the ADA, the state analogue, and the employer’s own written standards.
Dr. Mendonsa is retained by counsel nationwide. Where an evaluation requires licensure in the forum state, he confirms his standing there before accepting the engagement. He is licensed in 13 states, and record-review or rebuttal work frequently does not require forum licensure at all.
Before the order issues, or after it is challenged.
A short call will usually establish whether the referral is defensible, what the examination should ask, and where an existing evaluation is exposed.