B-155489, DEC. 10, 1964

TO THE HONORABLE JOHN W. MACY, JR., CHAIRMAN, CIVIL SERVICE COMMISSION:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1964, ENCLOSING FOR OUR CONSIDERATION MATERIAL WHICH YOU PROPOSE TO ISSUE IN THE FEDERAL PERSONNEL MANUAL REGARDING FITNESS-FOR-DUTY MEDICAL EXAMINATIONS.

YOU SAY THAT THE COMMISSION FREQUENTLY RECEIVES QUESTIONS CONCERNING THE AUTHORITY OF AN AGENCY TO REQUIRE AN EMPLOYEE TO UNDERGO A FITNESS-FOR- DUTY EXAMINATION (PHYSICAL OR MENTAL, OR BOTH), AND THE AUTHORITY OF THE AGENCY TO TAKE DISCIPLINARY ACTION IF THE EMPLOYEE REFUSES TO BE EXAMINED BY THE AGENCY-DESIGNATED PHYSICIAN BUT IS WILLING TO BE EXAMINED BY A PHYSICIAN OF HIS OWN CHOICE. ALSO, YOU SAY THAT THERE IS NO STATUTE OR EXECUTIVE ORDER THAT IN SPECIFIC TERMS AUTHORIZES AN AGENCY TO REQUIRE AN EMPLOYEE TO UNDERGO A FITNESS-FOR DUTY EXAMINATION; HOWEVER, SUCH AUTHORITY IS CLEARLY IMPLIED FROM THE LANGUAGE OF VARIOUS STATUTES AND EXECUTIVE ORDERS.

FOR THE PURPOSE OF EXPLAINING AN AGENCY'S AUTHORITY TO REQUIRE AN EMPLOYEE TO UNDERGO A FITNESS-FOR-DUTY EXAMINATION, THE COMMISSION PROPOSES TO ISSUE A FEDERAL PERSONNEL MANUAL INSTALLMENT, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER. HOWEVER, BEFORE ISSUING THIS MATERIAL OUR DECISION IS REQUESTED AS TO WHETHER THERE IS ANY OBJECTION TO THE PROPOSED FEDERAL PERSONNEL MANUAL INSTALLMENT, PARTICULARLY THOSE PARTS WHICH STATE THAT "A FITNESS-FOR-DUTY MEDICAL EXAMINATION TO BE OBTAINED AT NO COST TO THE EMPLOYEE OR THE CIVIL SERVICE COMMISSION-WILL BE VALUABLE IN COUNSELING THE EMPLOYEE AND IN DETERMINING THE FEASIBILITY OF THE ALTERNATIVE ACTIONS AVAILABLE TO THE AGENCY OR THE EMPLOYEE, AND THAT THE AGENCY SHALL PAY THE PHYSICIAN'S FEE WHEN THE EMPLOYEE IS EXAMINED BY A PHYSICIAN OF HIS OWN CHOICE.

YOU POINT OUT THAT IF AN AGENCY IS TO COMPLY WITH THE REQUIREMENTS OF THE LLOYD-LAFOLLETTE ACT AND SECTION 14 OF THE VETERANS' PREFERENCE ACT IN EFFECTING AN EMPLOYEE'S SEPARATION FOR DISABILITY UNDER PART 752," ADVERSE ACTIONS," OF THE COMMISSION'S REGULATIONS, OR HIS DISABILITY UNDER THE CIVIL SERVICE RETIREMENT ACT, THE AGENCY MUST HAVE A MEDICAL REPORT FROM A PHYSICIAN WHO HAS EXAMINED THE EMPLOYEE. YOU SAY THAT THE COMMISSION FEELS VERY STRONGLY THAT REGARDLESS OF WHETHER A PHYSICAL OR MENTAL EXAMINATION IS REQUESTED IN CONNECTION WITH A DISABILITY RETIREMENT, OR A POSSIBLE ADVERSE ACTION PROCEEDING, THE AGENCY IS REQUESTING THE EXAMINATION PRIMARILY IN THE INTEREST OF THE GOVERNMENT. IN OTHER WORDS, YOU SAY IT IS IN THE INTEREST OF THE GOVERNMENT FOR AN AGENCY TO KNOW THE PHYSICAL AND MENTAL CONDITION OF AN EMPLOYEE SO THAT IT CAN DETERMINE WHETHER HE IS SUITABLE TO CONTINUE TO PERFORM HIS DUTIES, OR WHETHER IT SHOULD RECOMMEND HIS DISABILITY RETIREMENT.

PRIOR DECISIONS OF OUR OFFICE HAVE HELD THAT WHEN THE PHYSICAL EXAMINATIONS OF EMPLOYEES MAY BE CONSIDERED AS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN THE EMPLOYEES, THE EXPENSE OF SUCH EXAMINATIONS PROPERLY MAY BE PAID FROM PUBLIC FUNDS. THE GENERAL RULE REGARDING THE USE OF PUBLIC FUNDS FOR PAYMENT OF EXPENSES OF THE MEDICAL TREATMENT OR PHYSICAL EXAMINATION OF CIVILIAN EMPLOYEES OF THE GOVERNMENT WAS STATED IN 22 COMP. GEN. 32, AS FOLLOWS:

"IT HAS BEEN LONG RECOGNIZED THAT THE EXPENSE OF MEDICAL TREATMENT FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT IS PERSONAL TO THE EMPLOYEE AND THAT THERE IS NO AUTHORITY FOR THE PAYMENT THEREOF FROM PUBLIC FUNDS UNLESS PROVIDED FOR IN THE CONTRACT OF EMPLOYMENT ORBY STATUTORY ENACTMENT OR VALID REGULATION. 6 COMP. DEC. 955; 8 ID. 296; 11 ID. 177; 16 ID. 99; 3 COMP. GEN. 111; 18 ID. 533.

"HOWEVER, THIS OFFICE HAS HELD THAT WHERE THE CIRCUMSTANCES ARE SUCH THAT MEDICAL ATTENTION TO AN EMPLOYEE--- INCLUDING INOCULATION OR VACCINATION TO WHICH THESE EXAMINATIONS SEEM MORE OR LESS AKIN IN VIEW OF THEIR PRECAUTIONARY NATURE--- MAY BE CONSIDERED AS PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN THE EMPLOYEE, THE EXPENSE THEREOF MAY PROPERLY BE PAID FROM APPROPRIATED FUNDS. 2 COMP. DEC. 347; 6 ID. 447; 60 MS COMP. DEC. 1425; A-29752, DECEMBER 17, 1929; A 32786, AUGUST 8, 1930; A-97344, AUGUST 26, 1938. CF. 15 COMP. GEN. 20.'

SINCE, UNDER THE ABOVE-CITED DECISIONS, THE EXPENSE OF MEDICAL EXAMINATIONS OF GOVERNMENT EMPLOYEES PROPERLY MAY BE PAID FROM PUBLIC FUNDS ONLY WHEN SUCH EXAMINATIONS ARE CONSIDERED TO BE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN THE EMPLOYEE, WE BELIEVE THAT THE PROPOSED FEDERAL PERSONNEL MANUAL INSTALLMENT SHOULD SPECIFICALLY PROVIDE THAT AN AGENCY CAN PAY FOR AN EMPLOYEE'S FITNESS FOR-DUTY MEDICAL EXAMINATION ONLY WHEN IT HAS DETERMINED THAT SUCH EXAMINATION IS NECESSARY PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT. IT APPEARS REASONABLE TO CONCLUDE THAT AN AGENCY COULD, UNDER CIRCUMSTANCES SUCH AS THOSE SET FORTH IN YOUR LETTER, DETERMINE THAT THE FITNESS-FOR-DUTY MEDICAL EXAMINATION OF AN EMPLOYEE WOULD BE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT. HOWEVER, SINCE THE AGENCY APPARENTLY HAS THE AUTHORITY TO ORDER AN EMPLOYEE TO TAKE A FITNESS-FOR-DUTY MEDICAL EXAMINATION, WE BELIEVE THAT THE EMPLOYEE SHOULD BE ALLOWED TO PARTICIPATE IN THE SELECTION OF A PHYSICIAN TO CONDUCT THE EXAMINATION ONLY IN THOSE CASES WHERE THE EMPLOYEE REFUSES TO BE EXAMINED BY THE AGENCY-DESIGNATED PHYSICIAN.

IN VIEW OF THE FOREGOING, WE DO NOT CONCUR IN THE WORDING OF THE LAST TWO SENTENCES OF THE PROPOSED FEDERAL PERSONNEL MANUAL INSTALLMENT. SUGGEST THAT THOSE SENTENCES BE REWORDED ALONG THE FOLLOWING LINES:

NORMALLY A FEDERAL MEDICAL OFFICER SHOULD CONDUCT THE FITNESS-FOR DUTY MEDICAL EXAMINATION. HOWEVER, WHEN IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT SUCH AN EXAMINATION IS NECESSARY PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT, IF THE EMPLOYEE REFUSES TO BE EXAMINED BY THE AGENCY- SELECTED PHYSICIAN (FEDERAL MEDICAL OFFICER IF AVAILABLE, OR PRIVATE PHYSICIAN), THEN THE EMPLOYEE MAY PARTICIPATE IN THE SELECTION OF A PHYSICIAN TO CONDUCT THE EXAMINATION, SUBJECT TO THE FOLLOWING CONDITIONS: (1) THE PHYSICIAN MUST BE BOARD CERTIFIED IN THE APPROPRIATE MEDICAL SPECIALTY, AND ACCEPTABLE TO THE AGENCY, AND (2) THE PHYSICIAN SUBMITS A COMPLETE REPORT OF THE EXAMINATION DIRECTLY TO THE AGENCY. WHEN SUCH CONDITIONS ARE MET, THE AGENCY MAY PAY THE PHYSICIAN'S FEE FOR THE EXAMINATION.

ALSO, SINCE THE GOVERNMENT RECEIVES THE PRINCIPAL BENEFIT RESULTING FROM THE MEDICAL EXAMINATION, WE SUGGEST DELETING THE LAST THREE WORDS "OR THE EMPLOYEE" IN THE FIRST SENTENCE OF THE PROPOSED INSTALLMENT.