FitForce Blog

Law Enforcement Technology Magazine: The Future of Fitness

Keith W. Strandberg of Law Enforcement Technology Magazine featured FitForce in an article for the December, 2014 edition:

https://let.epubxp.com/i/423221

To download the document, click here:

Download LET Magazine_The Future of Fitness.12 2014.

Physical Readiness Testing: Part 2

In Part 2 of our series on Physical Readiness Testing in the December, 2014 edition of Law & Order magazine, Phil Spottswood and I discuss recruit/academy testing in light of recent litigation. Check it out here:

https://www.hendonpub.com/resources/article_archive/results/details?id=5246

Why do we do sports in the first place?

Recently I was driving to the DC-area to conduct applicant fitness testing for a client and I happened upon a public radio station. Before anybody tries to drum me out of the Conservative Men's Club appreciate that this afforded me a break from the ranting NYC sports channels going off on the latest Jets performance the day before. The NPR piece was a discussion about an upcoming Sports Illustrated Cover Article about homeless high school athletes.

After 22 seasons as track coach at a private, Catholic high school, I moved to the public high school, in the same town. We had a great run but I really needed to down shift a little on my responsibility level and this opportunity has allowed me to just focus on coaching the throwing events. One of the first things that struck me about my new home was the stark difference between nature of the kids' needs. It won't come as a bulletin that all kids, especially adolescents, have significant needs: reassurance, guidance, safety, the chance to challenge themselves and to grow. But many kids also need the consistent example of a male figure; they need to understand the value of a high school education (!); they need a good meal.

Needless to say, I was motivated to listen in to the conversation. I haven't read the article yet but one of the points missing in the conversation was this: sports allow a different playing field. For the time you're with your teammates, working with coaches, and putting it out there, it doesn't matter how many parents live at home, what the address is, or how your situation stacks up against the other people on your team. Athletes have a chance to remake themselves, each day they show up to practice, every game, and as the SI article suggests, maybe they can remake themselves for life.

USA Track & Field, the governing body for amateur T&F in this country just announced this year's Hall of Fame Class. Its a great group that illustrates more than achievement. The individuals included overcame adversity in several different forms and in remaking themselves, they helped to remake their sport a little bit. Their stories make for a good read - particularly the two throwers, though I'm a little biased! Have a look.

USA Track & Field - USATF announces 2014 Hall of Fame Class.

Stay Safe, Strong
JS

Legal Spotlight: An agency's prerogative to set and enforce medical guidelines

An all-too-common issue encountered by departments revolves around medical inquiries concerning acknoweldged or perceived disabiling conditions. Can an agency make an inquiry into an officer's current medical status? This situation may involve a long-time employee or a veteran returning to duty after serving overseas. The answer to the "Can we" question is often: a) don't know or b) don't think so. In fact, the former should not be the case and to the latter the answer is "Yes" when properly conducted and justified.

    A recent decision by the Merit Systems Protection Board provides guidance in this situation. In Archerada v Department of Defense, Agency <Download Archerda.Full MSPB Decision.July2014> (Docket No. SF-0752-12-0208-I-1, July 11, 2014), the appellant was a firefighter and a former U. S. Air Force Reservist Firefighter partially disabiled due to Post-traumatic Stress Disorder (PTSD).

    The employing agency's physician and physician's assistant repeatedly requested documentation from the appellant regarding his diagnosis and prognosis; the appellant did not comply with the request and subsequently filed suit claiming discrimination in violation of the Rehabilitation Act of 1973. The current case is a review of a previous Board decision.

    In the action, the Board upheld as lawful the agency's request for medical documentation pursuant to its authority to establish medical and physical fitness guidelines and standards. The inquiry was deemed job-related and consistent with business necessity because the employer had a reasonable belief, based on objective evidence, that 1) the employee's ability to perform essential job functions will be impaired by his current medical condition and 2) the employee will pose a direct threat due to his medical condition.

    Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. {29 C.F.R. 1630.2(r)}

    The agency's actions, which highlight the need for a systematic approach, coupled with the implementation of medical evaluation and clearance programs for public safety personnel and related safety sensitive/critical occupations, will ensure that there are no medical and/or medication issues likely to adversely affect safe and efficient job performance or undermine the agency’s commitment to maintaining a safe working environment for all employees.

    Clearly, this represents a good playbook for us to reference.

This entry is intended to inform and should not be construed as legal opinion nor a replacement for sound legal counsel.

Stay Safe, Stay Strong

JS

Physical Testing: Have Our Requirements Changed?

In response to recent litigation (  Download Bauer v DOJ Decision.0614 ) there have been some spirited conversations here at the FF World Headquarters. Some of these will be translated into articles that we are putting together (but more about that at a later date). The gist of one such discussion revolves around physical testing and whether the rules of the game have changed. In a word: "No." The mandates have not changed although we appear to be gaining some clarity as to their enforcement. The validition options have not changed either, but recent decisions have again placed an emphasis on the origin of the validity evidence and how it is applied. What has changed is the frequency and urgency of the conversations around testing, the goals of testing, and the human capital decisions an agency can validly and lawfully make as a result of the testing outcomes.

The Bauer Decision and Job-Relatedness

Those who fail to learn from the mistakes of the FBI are destined to lose in court.

FitForce Blog, July 17, 2014

 

The (admittedly modified) words of George Santayana seem particularly apropos as we consider further the implications of Bauer v Holder, Department of Justice (Case No. 1:13-cv-93). A central issue in Bauer is the physical fitness test and standards (PFT) required of National Academy Trainees (NAT's) which resulted from two studies conducted by an Industrial/Organizational Psychologist employed by the FBI. In its defense of the test, the FBI offered that the National Academy Training Program (NATP) is designed to ensure a NAT has attained the necessary proficiencies to perform the duties of a special agent and that participation in the physical training program is important to ensure safety and effectiveness in training and on the job (paraphrased). Successful completion of the PFT therefore is considered a "key component" of the Physical Training Program.

What are the takeaway points from the Bauer Decision (Part 1)

Retention standards. There, I said it. If there is a topic more likely to divide the entire population related to law enforcement, and in this case the entire population is related to law enforcement, I'm not sure what it is.

Whenever the topic of my job comes up, the person on the other side of the conversation says something like, "Yeah. I was wondering about that: are there fitness requirements for officers on the job." By the time I get through my discussion of POST-enabling legislation this and anti-discrimination legislation that, their eyes have glazed over and I'm left wondering, yet again, why didn't I just talk about the Red Sox' chances for this season.

Is Bauer v Department of Justice the Decision We've Been Waiting For?

The United States District Court for the Eastern District of Virginia rendered a decision on June 10, 2014 that adds some much needed clarity to the definition of physical readiness standards and the policies a public safety agency is expected to enforce pursuant to their efforts to ensure a physically capable workforce. The Bauer Decision < Download Bauer v DOJ Decision.0614 >, coupled with the Easterling Decision <Download Easterling-v-Dept-Corrections-Order-Granting-Summary-Judgment > out of the 2nd Federal Circuit, will help to provide the direction for agencies that has been sorely lacking for decades. During that time, FitForce has made a cogent argument for an approach to standards, testing, and policy and procedure that both complies with the revised Civil Rights Act of 1991 and lawfully ensures a physically ready workforce. Our position has been consistent over that time and as it turns out, it has been entirely consistent with the court's decision in Bauer.

Due to the significance of Bauer, I will spend some time reviewing the issues raised; in this entry, the merits of the case will be relayed.

Adaptations to Training or "How will our people pass this new fitness test?" (Part 2)

PUSH UPS, SIT UPS AND BENCH PRESS TEST

The ability to generate force is perhaps more intuitively related to the job of the public safety officer than other fitness parameters. Dragging a charged hose, affecting a forceful arrest, or maintaining an effective presence in uniform are examples of tasks requiring some degree of muscular fitness. The attributes associated with muscular fitness, i.e. strength, power, and endurance, are consistently demonstrated to be job-related.

Tests of muscular endurance, that is the ability to sustain a sub-maximal force, include the timed one-minute sit up test and the push up test. Muscular strength is the ability to generate high amounts or maximal force, typically one time. The bench press test measures the amount of force the upper body can generate in the bench press position.

Adaptations to Training or "How will our people pass this new fitness test?" (Part 1)

We are in the business of ensuring the physical readiness of the folks who safeguard our lives on a day-to-day basis. In the process of performing our duties, we will, on demand, develop tests and standards. These physical readiness tests take one of two forms: physical fitness test battery or job-task simulation tests. (We develop both but don't charge extra for it!) One of the first questions we get during the out-brief is: "How many people will pass (or fail) the test?" This often represents a shift in the administrative emphasis from fitness for duty to avoiding perceived challenges. Public safety is in the business of managing risk and we're not promoting a cavalier approach to another risk, namely potential litigation; but let's be clear on the mission: public safety agencies are tasked with ensuring their sworn members are up to the job.