UNCLASSIFIED (U)

12 FAM 040

DS Physical Readiness and FITNESS For Duty PROGRAMs

(CT:DS-288; 02-09-2018)
(Office of Origin: DS/DSS)

12 FAM 041 OVERVIEW

12 FAM 041.1 Authorities

(CT:DS-288; 02-09-2018)

The regulations in this subchapter are governed by the following authorities:

(1) The Foreign Service Act of 1980, as amended, 22 U.S.C. 3901 et seq.;

(2) State Department Basic Authorities Act, Public Law 84-885, section 37; 22 U.S.C. 2709 [regarding Special Agent authorities];

(3) 12 FAM Exhibit 023, Department of State Deadly Force and Firearms Policy;

(4) 16 FAM 110, Authorities and Organization;

(5) 1 FAM 013.2, Responsibilities of Chiefs of U.S. Missions;

(6) 2 FAM 113.1, subparagraph c(2), [regarding chief of mission and principal officer];

(7) The Rehabilitation Act of 1973 (Public Law 93-112), 29 U.S.C. 791 et seq.;

(8) U.S. Equal Employment Opportunity Commission (EEOC) regulations at 29 CFR 1630.

(9) Public Law 106-113 dated 11-29-99;

(10) 22 U.S.C. 4865, Chapter 58Diplomatic Security; and

(11) 5 CFR Part 339.

12 FAM 041.2 Definitions

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

Deadly force: As defined in 12 FAM Exhibit 023.

Director: The Principal Deputy Assistant Secretary for Diplomatic Security and Director of the Diplomatic Security Service (DS/DSS), as defined in 1 FAM 262. The DSS director can designate another official to perform any responsibility or function under this policy.

Fit for full duty: Presently fit for unrestricted law enforcement and/or security duties requiring the use of special protective equipment (SPE).

Fit for limited duty: Temporarily fit for limited duty in a position that does not require SPE or will not lead to situations that may require the use of force.

Fitness for duty: The fitness required of employees to use SPE and perform essential job functions (as defined in 29 CFR 1630.2(n)) and make decisions whether to use deadly force in fulfilling law enforcement and/or security responsibilities. Fitness for duty is determined after a medical examination and/or psychiatric examination or psychological assessment in accordance with Office of Personnel Management standards or guidelines, as applicable. The Bureau of Medical Services (MED) will provide an individualized assessment that takes into account the employee's ability to perform essential job functions and ability to make decisions whether to use deadly force in fulfilling law enforcement and/or security responsibilities.

Fitness-for-duty evaluation (FFDE): A comprehensive examination performed by MED to evaluate the fitness of personnel who use SPE and/or who are involved in law enforcement and/or security functions.

MED: The Bureau of Medical Services (MED), to include the Mental Health Directorate of the Bureau of Medical Services, whose functions are described in 1 FAM 360.

Permanently unfit: Permanently unfit for duties requiring the ability to perform the essential job functions related to law enforcement and/or security.

Physical readiness: The measurable capabilities required of DS special agents to perform essential job functions while fulfilling security and law enforcement duties.

Special agent: Sworn Diplomatic Security (DS) special agents with Foreign Service occupational job 2501 skill code and Civil Service occupational job series 1811.

Special protective equipment (SPE): Department-issued specialized equipment required for law enforcement and/or security duties including, but not limited to, firearms, other lethal weapons, and less than lethal weapons.

Temporarily unfit: Temporarily unfit for duties requiring the ability to perform the essential job functions related to law enforcement and/or security.

12 FAM 042 General RESPONSIBILITIES

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. By Delegation of Authority No. 221-8, dated 6-12-2000, the Under Secretary for Management delegated all functions under section 606(a)(5) of Public Law 106-113 (22 U.S.C. 4865(a)(5)) to the Director General of the Foreign Service in consultation with the Assistant Secretary for Diplomatic Security.

b. The Diplomatic Security service director is responsible for the overall administration of the Physical Readiness and Fitness For Duty Programs.

c. MED is responsible for the necessary clinical procedures and protocols to conduct FFDEs consistent with the appropriate standards for such specialized examinations.

12 FAM 043 PHYSICAL FITNESS program

12 FAM 043.1 Physical Fitness Testing Requirement

(CT:DS-277; 07-21-2017)
(State Only)
(Applies to Civil Service and Foreign Service Employees)

Physical fitness participation must be included as a continuing responsibility in an employees work requirement statement (for Foreign Service special agents/security officers) or as a separate performance element (for Civil Service special agents/criminal investigators), unless there is an approved waiver granted by MED or FSMP, Human Resources Work/Life Programs Office (HR/ER/WLD), or by the Training and Performance Support Office, Security and Law Enforcement Training Division (DS/T/TPS/SLTD).

12 FAM 043.2 Physical Fitness Testing and Standards

12 FAM 043.2-1 Testing

(CT:DS-179; 06-12-2012)
(State Only)
(Applies to Civil Service and Foreign Service Employees)

a. All employees designated under 12 FAM 041.2 are to be tested in all of the specified categories to determine their fitness level. Refusal to be tested or to obtain a valid waiver, as provided in 12 FAM 043.2-3, may result in an admonishment or disciplinary action (see 3 FAM 4300 for Foreign Service employees and 3 FAM 4500 for Civil Service employees).

b. Testing may take place at the Diplomatic Security Training Center (DSTC) (DS/T/TPS) or other locations in the Washington, DC, area and may be administered by the fitness program coordinator(s) or other trained DS personnel. At locations abroad if no trained person is available for this purpose, the test may be self-administered. Employees may schedule a test if they are in the Washington, DC, area for other reasons. Employees may also be tested in locations outside the Washington, DC, area in accordance with procedures and guidelines developed by DS/T/TPS.

c. Employees granted waivers from fitness program testing (due to medical or other waivers as outlined in 12 FAM 043.2-3) must complete a Physical Fitness Test (PFT) within 90 days of the waiver expiration, unless requesting a new or renewal waiver. Testing thereafter will coincide with the triannual testing schedule in accordance with this policy, and procedures and guidelines developed by DS/T/TPS.

d. If a work assignment, training, or leave precludes employee testing when scheduled, employees must contact their appropriate fitness test coordinator to reschedule an alternate date within 10 working days after returning to a normal work schedule.

e. For those employees unable to meet the Satisfactory (50 percent) physical fitness standards in one or more of the physical fitness categories, the employee may contact the fitness program coordinator who will recommend an exercise program to help them improve their fitness level.

f. Employees must be tested in the following physical fitness categories:

(1) Muscular endurance (push-ups)number in 2 minutes;

(2) Muscular endurance (sit-ups)number in 2 minutes; and

(3) Aerobic capacity (run)1.5 mile run.

NOTE: The 1.5 mile run can be conducted on an outdoor measured course, or may be conducted on an indoor mechanically-powered treadmill, with adjustable speed and inclination features, and the ability to measure distance. For treadmill testing purposes, the inclination will be set to one (1) degree uphill to offset the powered assistance offered by the treadmill. The PFT time standards will remain the same, applicable to age, gender, and testing site altitude.

g. Employees must complete the PFT three times per year. Testing periods will be the following inclusive dates:

(1) January 1April 30;

(2) May 1August 31; and

(3) September 1December 31.

h. PFT results will be promptly reported to the fitness program coordinator for posting in the DS Employee Tracker Qualifications database. The qualifications database is the repository for all covered employee testing results, and includes information relating to approved waivers of physical fitness testing requirements.

12 FAM 043.2-2 Physical Fitness Tests (PFT) Standards

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service Employees)

The procedures, guidelines, and testing standards that implement these regulations are contained in the Physical Fitness Test Administrators Guide on the Training and Performance Support web site. Forward other PFT questions to the fitness program coordinator (E-mail: mailto:DS_Physical_Readiness_Program@state.gov or the Special Skills branch chief (DS/T/TPS/SLTD/SSB).

12 FAM 043.2-3 Physical Fitness Testing Waivers

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service Employees)

a. Medical waivers:

(1) Employees physically unable to take the PFT due to a medical condition or illness must request a waiver through a State Department physician in MED or through their FSMP. The Departments medical officer will provide a waiver recommendation to the fitness program coordinator;

(2) Employees with personal physicians may submit the form DS-7634, Medical Waiver for Participation in Diplomatic Security Physical Readiness Program, to their personal physician to evaluate the employees medical condition(s) and provide a medical basis as to why the medical condition(s) prohibits the employee from undergoing physical fitness testing;

(3) Domestic employees will submit the form DS-7634 and the personal physicians report to MED. Employees abroad will submit the form DS-7634 to their FSMP. MED, or the FSMP, will then advise the fitness program coordinator of the expected period of time for which a waiver of the physical fitness test should be granted. The maximum length of time a waiver can be granted is one year, but extensions may be requested. After the one-year maximum, the employee must be medically re-evaluated to determine whether the employee remains eligible for waiver of the participation requirement. The employee, at the end of the recommended medical waiver period, must report for physical fitness testing or apply for another waiver;

(4) The employee is responsible for ensuring waiver information is sent to the fitness coordinator at DS/T/TPS/SLTD/SSB. The fitness program coordinator will update the DS Qualifications database to reflect fitness testing status. For additional information, employees should refer to the DS/T/TPS/SLTD/SSB fitness program Web site and PFT Administrators Guide, or e-mail questions to the fitness program coordinator at mailto: DS_Physical_Readiness_Program@state.gov; and

(5) In cases where permanent disability makes it impossible for an employee to undergo physical fitness testing, the employee must request a permanent waiver from the PFT in the form of reasonable accommodation from HR/ER/WLD. Facts on reasonable accommodations for employee disabilities and the required Reasonable Accommodation Request form are available on the HR/ER/WLD Web site.

b. Other physical fitness test waivers:

(1) Employee requests for certain non-medical waivers from physical fitness testing will be submitted electronically or in writing to the physical fitness program coordinators office (DS/T/TPS/SLTD/SSB). The request for a non-medical waiver must include the reason(s) that a physical fitness program, or testing, cannot be completed by the employee(s). The waiver request will be reviewed on a case-by-case basis by the Special Skills branch chief and the chief of the Security and Law Enforcement Training Division. Decisions on non-medical waiver requests will be sent to the employee;

(2) Employees should provide information to aid DS in determining if extenuating circumstances exist which may outweigh the employees participation in a physical fitness program and the required physical fitness testing. Such extenuating circumstances include:

(a) Threat-related hazardous conditions: Local conditions exist which may be hazardous or constitute a physical threat to the employee(s). Such circumstances may include the inability to regularly participate in a fitness program due to threat-related conditions, such as risk of death or injury to the employee from local terrorism or crime threat concerns;

(b) Environment-related Hazardous conditions: Local conditions exist which may be hazardous to the employees health and constitute a medical threat to the employee(s). Such circumstances may include the inability to regularly participate in a fitness program due to environmental conditions, such as air pollution or extreme hot/cold weather; and

(c) Other conditions: Other local conditions may exist which preclude an employees participation in a physical fitness training program or testing. Such circumstances may include extended work schedules, temporary duty assignments away from post, etc. Waiver request(s) should be discussed with the fitness program coordinator in advance of any formal submission.

12 FAM 044 PARTICIPATION IN AN EXERCISE PROGRAM

12 FAM 044.1 Authorized Time Allowed

(CT:DS-179; 06-12-2012)
(State Only)
(Applies to Civil Service and Foreign Service Employees)

a. Employees are encouraged to engage in an exercise program in order to meet or exceed the Satisfactory level (50%) for each physical fitness test standard. Supervisors are authorized and encouraged to allow employees to use a maximum of three, nonconsecutive hours during their regular 40-hour workweek to pursue an exercise program. These hours are in addition to the employees lunch period. Time allowed to pursue an exercise program is not cumulative from week to week.

b. Upon notification by the fitness program coordinator that an employee has not complied with requests to promptly complete the triannual physical fitness test, the supervisor must disallow further exercise time during regular work hours until the test has been completed. Supervisors are responsible for ensuring that employees use the time allowed to pursue an exercise program.

c. Time spent engaged in an exercise program will not be credited towards an employees Law Enforcement Availability Pay (LEAP) hours.

12 FAM 044.2 Injuries

(CT:DS-179; 06-12-2012)
(State Only)
(Applies to Civil Service and Foreign Service Employees)

Injuries incurred while participating in an exercise program or testing during the regular hours of a workday may be compensable under the Federal Employees Compensation Act (see 3 FAM 3630 and 3 FAH-1 H-3630) and 5 U.S.C. 8101 and 20 CFR 10).

12 FAM 045 FITNESS-FOR-DUTY EVALUATION

12 FAM 045.1 Purpose and Applicability

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. This policy applies to Civil Service and Foreign Service special agents who are authorized to carry a DS-issued and/or DS-approved SPE, domestically and/or overseas, by virtue of their assigned law enforcement and security duties and as designated by position description. These DS personnel are referred to as "employees" in this subchapter. E.O. 13775 is the appropriate mechanism to determine reliability and trustworthiness for other DS personnel authorized to carry SPE who do not have law enforcement authority.

b. This policy recognizes that DS employees responsible for protecting others and/or enforcing U.S. federal laws must be fit to withstand the demanding requirements of conducting DS' investigative, protective, and security operations. An employees fitness has the potential to directly affect the safety and security of the employee, other employees, and civilians, in addition to negatively impacting DS ability to fulfill its responsibilities as the security and law enforcement arm of the Department.

c. This policy establishes consistent procedures for ordering and implementing FFDE of personnel who are authorized to carry DS-issued and/or DS-approved SPE, domestically and/or overseas, and whose duties include law enforcement and/or security functions.

d. This policy is not intended to alter or replace confidential counseling provided by the Department. Rather, it is intended to provide a mechanism for the assessment of an employees ability to perform essential law enforcement and/or security duties, including those requiring the use of SPE, when the employees performance, conduct, or behavior indicates that the employee may be unable to fulfill an essential job function relating to law enforcement and/or security, and that continued service by the employee may:

(1) Pose a threat to public safety;

(2) Jeopardize the safety of other employees;

(3) Jeopardize the safety of the particular employee; or

(4) Interfere with DS's ability to fulfill its responsibilities as the law enforcement and security arm of the Department.

e. This policy is not intended to replace or be used in lieu of any background investigation or any investigation concerning possible misconduct. Issues concerning eligibility to retain a security clearance or misconduct should be investigated independently.

f. This subchapter sets forth procedures and standards governing when and how an employee of the Department whose duties require use of SPE may be ordered to undergo an FFDE and potentially be removed from law enforcement or security duties.

12 FAM 045.2 RESPONSIBILITIES

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. The DSS director determines:

(1) Whether an employee should be ordered to undergo an FFDE;

(2) If an employee should be removed from duties requiring the use of SPE pending an order for an FFDE;

(3) Whether, based on the results of the FFDE, the employee should:

(a) Be reinstated to full unrestricted law enforcement and/or security duties requiring the use of SPE;

(b) Be reinstated to limited duty in a position that does not require SPE or could lead to situations that may require the use of force;

(c) Be found temporarily unfit for full or limited duty (i.e. the employee is unable to work in any capacity for a limited amount of time); or

(d) Be found permanently unfit for duties requiring the ability to perform the essential job functions related to law enforcement and/or security, and removed from duty.

(4) Whether any such change in the employees duties requires curtailment of assignment.

b. Normally, the employee's immediate supervisor, through the chain of command, submits the initial referrals for a possible FFDE. However, other individuals should also notify appropriate authorities that an employees conduct, behavior, and/or circumstances may warrant an assessment of the employees fitness for duty.

c. When there is a reasonable belief that an employee's behavior may pose a direct threat to public safety and/or jeopardizes the safety of himself, herself or others, the supervisor (including the chief of mission (COM) or deputy chief of mission (DCM) at a post abroad) may immediately relieve the employee of duty and require the employee to surrender his or her SPE pending a decision by the DSS director on whether to order an FFDE. Whenever such action is taken, the supervisors referral to the DSS director must fully detail the circumstances and justification for such action.

d. DS will fund all necessary costs outside of normal commuting costs associated with transportation for the sole purpose of bringing an employee to and from the location of an FFDE and will arrange such travel through DS, not MED channels. As defined in 16 FAM 310, medical travel must not be used solely to provide for an FFDE.

e. MED will develop the necessary clinical procedures and protocols to conduct FFDEs consistent with the appropriate standards for such specialized examinations. These evaluations may include, but not be limited to, the following:

(1) A physical examination and appropriate laboratory testing (to include toxicology) performed by a licensed physician;

(2) Diagnostic mental health interview(s);

(3) Psychological testing;

(4) Collateral interviews, as appropriate to the specific case; and

(5) Review of related documents, which may include any materials related to an ongoing investigation(s), employee performance evaluations, or other relevant materials.

f. MED is responsible for scheduling, administering, and arranging all FFDEs, in accordance with this policy. MED must maintain all test results and records associated with the FFDE and ensure that appropriate reports are written and submitted in accordance with this policy and applicable procedures. After completion of these recommendations, MED is responsible for the arrangement and conduct of any subsequent FFDEs relating to the original order.

12 FAM 045.3 Criteria for an FFDE

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. To assist in determining an employee's continuing fitness with respect to his/her ability to use SPE safely or perform an essential job function related to law enforcement and security, all supervisory employees should be alert to any indication that an employee may not be fit. Such indications of different factors are listed below. The mere presence of any one factor or combination of factors may not be sufficient to order the evaluation. However, such presence should not be ignored and may lead to ordering an evaluation.

b. Dramatic or sudden changes in any particular employees customary performance, conduct or behavior may increase concern. Supervisors should bear in mind that the basis for a referral for an FFDE must be both objective and reasonable. Indications may include, but are not limited to:

(1) A medical condition that prevents or significantly impairs the ability to safely perform an essential job function related to law enforcement and security;

(2) An employee's request for a medical curtailment or a change in an employee's medical clearance that in the opinion of MED warrants referral for a FFDE;

(3) One or more personnel complaints, whether internally or externally originated; particularly, complaints of the use of unnecessary or excessive force or any conduct indicating an inability to exercise self-control and self-discipline;

(4) An abrupt and negative change in the employees ability to perform law enforcement and/or security functions;

(5) Irrational verbal conduct or behaviors including delusions and hallucinations;

(6) Suicidal statements or behaviors or personal expressions of mental instability;

(7) Instances where an employee voluntarily surrenders or is ordered to surrender his/her SPE due to concerns related to paragraph (6);

(8) Unexplained and excessive tiredness or hyperactivity;

(9) Dramatic change in eating patterns resulting in sudden weight loss or gain or diagnosis of a life-threatening eating disorder;

(10) Change in behavioral pattern to include inattention to personal hygiene and health;

(11) Inappropriate use of alcohol, medications, or other drugs, including indicators of illegal drug use;

(12) Indications that an employee's use of a medication, either prescription or non-prescription, impairs, or may impair, his or her ability to use SPE safely or perform an essential job function related to law enforcement and security;

(13) Impatience or impulsiveness, especially with a loss of temper;

(14) A pattern of conduct indicating a possible inability or decrease in ability to defuse tense situations or a tendency to escalate such situations or create confrontations;

(15) Unexplained and inappropriate excessive lateness or absenteeism;

(16) An indication that the employee is experiencing neurocognitive problems that would hinder his or her ability to use SPE safely (e.g., dizziness, inability to balance, memory, or other cognitive difficulties); and

(17) Any other factor or combination of factors that indicate that an employee cannot safely use SPE or perform his/her essential job functions related to law enforcement and security.

12 FAM 045.4 Reporting Requirements for Observed Fitness Problems

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. Any Department employee who observes circumstances indicating that an employee may not be able to safely perform an essential job function related to law enforcement and security should notify that employees supervisor. Any supervisor observing such circumstances or receiving information indicating that an FFDE may be warranted, applying the criteria listed in 12 FAM 045.3, should first meet with the employee to further address the concern, if doing so will not aggravate the situation. These meetings should be documented in writing. A supervisor is entitled to ask the employee directly about his or her fitness if the supervisor has a reasonable belief, based on specific evidence, that the employee poses a direct threat to himself, herself, or others. If the meeting does not relieve the supervisors concerns or no meeting is conducted, the involved supervisor must prepare a written report of the circumstances to the DSS director.

b. If MED acquires information on an employee indicating that an FFDE may be warranted, applying the criteria listed in 12 FAM 045.3, MED should disclose such information directly to the DSS director in a manner consistent with the Privacy Act of 1974 (5 U.S.C. 552a); the ADA/Rehab Act (42 U.S.C. 12112(d)(3) and (d)(4), and 29 CFR 1630.14(b)(1) and (c)(1)) and the Genetic Information Nondiscrimination Act (29 CFR 1635.8). (The Privacy Act permits the release of information within a department or agency responsible for that record on a need-to-know basis without a Privacy Act Waiver (PAW), see 5 U.S.C. 552a(b)(1). MED may therefore disclose information about an individual to another Department employee who needs to know it to carry out his/her assigned duties.

12 FAM 045.5 Relief from Duty/Surrender of SPE Pending Order

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. In appropriate circumstances, such as when a reasonable belief exists that an employees behavior poses a direct threat to the safety of himself, herself, or others, a supervisory employee (including the COM or DCM at a post abroad) may immediately relieve the employee of duties requiring the use of SPE and require the employee to surrender his or her SPE pending a decision by the DSS director of whether or not to order a FFDE. Whenever such action is taken, the DSS director must be notified immediately and the supervisors FFDE referral to the DSS director must fully detail the circumstances and justification for such action.

b. If there is no immediate or direct threat to the safety of the employee or others, the supervisor should await guidance from the DSS director before requiring the employee to surrender his or her SPE. The DSS director, in consultation with the employees supervisor, may order the employee to surrender his or her SPE, relieve the employee from duty, or reassign him or her as necessary before making a final decision regarding the FFDE.

c. If the employees supervisor is not a Federal law enforcement officer (e.g., COM or DCM at a post abroad), the supervisor must ensure that the SPE is adequately secured and only handled by persons authorized to carry SPE.

d. Any employee who has purchased a personal handgun or any other firearm using his or her status/authorities as a DS special agent/Federal law enforcement officer and whose authority to carry SPE has been revoked must abide by all Federal, state, and local laws with regard to the possession and use of firearms.

12 FAM 045.6 Order for the Evaluation

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. In the exercise of his or her discretion and with or without additional investigation, the DSS director may determine that an FFDE is or is not warranted. If the DSS director determines that additional investigation is required, the appropriate investigative office will conduct an additional investigation and provide a report of investigation (ROI).

b. If when ordering an FFDE, the DSS director suspends or revokes an employee's law enforcement authority, or otherwise finds it to be prudent; the employee will immediately be relieved from all duties requiring the use of SPE. The employee must also immediately surrender all DS-issued firearms and law-enforcement identification media (credentials, badges, protection pins) to his or her supervisor. Employees must not return to post while pending an FFDE without the approval of the DSS director. An FFDE will be scheduled for the earliest opportunity.

c. The employee must receive a written order for the FFDE. Such order should include:

(1) The 12 FAM 045.3 criteria upon which the decision to order an FFDE was based;

(2) The name and title of the consultant conducting or overseeing the FFDE;

(3) Instruction to contact the consultant conducting or overseeing the FFDE within three days to schedule the necessary appointments for the examinations;

(4) A directive to cooperate with the FFDE, including any requests by the consultant conducting the FFDE and/or his or her staff and to answer completely and honestly any questions posed during the course of the FFDE;

(5) A notice that the FFDE is being conducted for use by the Department; and

(6) An order that for the duration of the FFDE all DS-issued firearms and law-enforcement identification media (credentials, badges, protection pins) will be surrendered to the employee's supervisor.

d. The order will also state that refusal to comply with the order to submit to an FFDE or any of its parts, or with the reasonable requests of the consultant(s) conducting the FFDE, may be deemed insubordination and may be grounds for referral for consideration of the full range of administrative disciplinary action, up to and including termination from federal service. Statements made to the consultant conducting the FFDE may only be used in a criminal or civil proceeding against the employee in accordance with applicable law and regulation.

e. Prior to beginning the FFDE, the employee will be asked to sign an informed consent form that states the scope and purpose of the evaluation, the nature of the procedures to be performed, and all related confidentiality limitations. MED will not conduct an FFDE without the employees signature on the informed consent form. An employee who has been ordered to submit to an FFDE and willfully fails to sign an informed consent form may be referred for consideration of administrative disciplinary action, up to and including termination from federal service.

12 FAM 045.7 Requirements for the Individuals Conducting the FFDE

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

MED will designate the consultant(s) authorized to conduct the FFDE. The consultant(s) must be a licensed physician and/or a licensed psychologist with appropriate training and experience in the opinion of MED to conduct an FFDE.

12 FAM 045.8 Scope of the FFDE Report

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. MED will provide the FFDE report to the DSS director. The report will only include information regarding the employee which, in the opinion of the consultant(s) performing the FFDE, is necessary to document the presence or absence of medical conditions that could interfere with the employee's ability to use SPE safely or perform an essential job function related to law enforcement or security.

b. The report should contain a clear opinion on whether the employee is:

(1) Fit for full duty - Presently fit for unrestricted law enforcement and/or security duties requiring the use of SPE. If the employee is found fit for duty, the consultant(s) conducting the FFDE should assume that duty will be unrestricted. Once found fit for full duty, and depending on the duration of the FFDE, some employees may require additional remedial training before returning to full duty status;

(2) Fit for limited duty - Temporarily fit for limited duty in a position that does not require SPE or could lead to situations that may require the use of force. Pending a completed proposed course of action, the employee could return to full duty in a reasonable timeframe. A recommended timeframe for a follow-up FFDE should be included;

(3) Temporarily unfit - Temporarily unfit for all duties pending a completed proposed course of action, the employee could return to full duty in a reasonable timeframe. A recommended timeframe for a follow-up FFDE should be included; and

(4) Permanently unfit - Permanently unfit for all duties requiring the ability to use SPE safely or perform essential job functions related to law enforcement and/or security.

c. If information deemed necessary for review by the consultant(s) performing the FFDE cannot be obtained, any recommendations might include the comment that the FFDE is based on available data and could be affected by specific additional information requested but not obtained by the consultant(s) performing the FFDE. Furthermore, the person(s) performing the FFDE may include a disclaimer that indicates the need to reconsider the FFDE conclusion(s) if it is determined that the employee provided information that proved misleading, deceptive, incomplete, distorted, or untrue.

d. If the employee is found "fit for limited duty" or "temporarily unfit", the report should include recommendations regarding counseling, modified job assignment, mentoring, training, or other remedies by which the employee can be helped to regain his or her fitness for duty, to include a schedule for follow-up evaluation prior to return to duty. DS should consult with HR/OAA/DRAD to address any modifications to the employee's job duties, and to engage in an interactive process to identify reasonable accommodations.

e. If the employee is found "permanently unfit," the opinion should include a detailed analysis to support the conclusion of the consultant(s) performing the FFDE. DS should refer the employee to HR/OAA/DRAD to discuss reasonable accommodations, including reassignment if appropriate.

12 FAM 046 RESPONSE TO FFDE REPORT

12 FAM 046.1 Personnel Allowed to Access FFDE Reports

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

Dissemination of all FFDE reports will be strictly limited to provide the employee with the maximum amount of confidentiality possible, while allowing Department personnel (e.g., MED, DS, L and the Bureau of Human Resources (HR)) access to the necessary information to make informed decisions regarding public safety, the safety of other employees, the safety of the particular employee, and the Departments ability to fulfill its mission.

12 FAM 046.2 Decisions Based on FFDE Reports

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

Once in receipt of the FFDE report, the DSS director will decide whether the employee should be reinstated to full duty, continue to be temporarily assigned to limited duty pending subsequent FFDEs, or be permanently removed from the use of SPE and duties related to law enforcement and/or security. In addition, the DSS director will decide whether any such change in the employees duties requires curtailment or whether the employee can stay at, or return to, his or her assignment.

12 FAM 046.3 Permanent/Long-Term Restriction from Law Enforcement or Security Duties

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

a. When the DSS director determines that an employee is to be permanently removed or requires a long-term restriction from the use of SPE and the performance of essential job functions related to law enforcement and/or security, an evaluation will be made by the Department (i.e., DS, MED, and HR) to determine if the employee can continue to be employed in a productive capacity by the Department. The employee should contact HR/OAA/DRAD to address the availability of reasonable accommodations that may enable the employee to remain in his or her position, or reassignment as a reasonable accommodation if appropriate.

b. If a decision is made that the employee cannot continue to be employed in a productive capacity, the Department (i.e., HR) will take appropriate steps to separate the employee from his or her position of record. Any separation action will be conducted in accordance with established procedures and federal law, including but not limited to, the Rehabilitation Act of 1973.

12 FAM 046.4 Relationship to Disciplinary and Other Proceedings

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

An FFDE is not a substitute for supervision or a mode of discipline and should never be used in a punitive fashion. An FFDE is independent and separate from other processes, e.g., disciplinary proceedings or background investigations. In a disciplinary action, DS will only disclose the FFDE report with the employee's written consent or as otherwise permitted by law.

12 FAM 047 RECORDKEEPING REQUIREMENTS

12 FAM 047.1 General

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

An FFDE is a comprehensive examination performed by MED to evaluate the fitness of personnel to perform functions related to the use of SPE and law enforcement and/or security. All records and reports generated in the service of an FFDE are maintained under the authority and management of DS/DSS, to include any working files generated and kept in MED, as a matter of operational necessity, convenience, or courtesy.

12 FAM 047.2 Confidentiality and Disclosure

(CT:DS-288; 02-09-2018)
(State Only)
(Applies to Civil Service and Foreign Service DS Special Agents)

Once MED has completed its assessment, MED will provide its findings and opinion to DSS. A copy of the findings and opinion will be provided to the employee upon notification from DSS regarding his or her FFDE status. The disclosure of information relating to an FFDE, including requests for information by employees or members of the public, is administered by DS and subject to all applicable laws and regulations governing disclosure of personally identifiable information, including but not limited to the Privacy Act of 1974, the Rehabilitation Act, and the Genetic Information Nondiscrimination Act of 2008. All records that are maintained in a system of records and that are generated in the course of initiating, conducting, and reporting FFDEs will be treated as security records subject to the System of Records Notice for Security Records, State-36. For more information, see the Privacy Office website.

12 FAM 048 through 049 UNASSIGNED

UNCLASSIFIED (U)