38-1140. Probation officers; fitness for duty; examinations; rights of probation officers; definitions

A. An employer may order a probation officer to submit to a physical examination only if the probation officer has acted or failed to act in an observable manner that indicates that there is a physical condition materially limiting the probation officer's ability to perform the essential functions of the probation officer's job within the probation officer's job description. The order shall state all of the specific objective facts on which the order for the physical exam is based except that the order may omit the specific names of individuals who reported the probation officer's conduct to the supervisor.

B. The order shall provide at least ten calendar days' notice to the probation officer to be examined and shall specify the time, place, manner, conditions and scope of the examination and the person or persons who will conduct the examination. The probation officer to be examined may have a representative present during the examination if the physician conducting the examination agrees.

C. The employer shall provide the probation officer with the final report of the examination containing the medical professional's findings. The employer may provide any additional information related to the fitness for duty examination to the examining physician.

D. The report shall be provided only to the employer and the probation officer and shall not be provided to any other person except as required for any subsequent appeal or certification action involving the probation officer. The employer shall provide notice to the probation officer that the report has been received by the employer. The report shall be provided to the probation officer immediately if the probation officer presents the final report of an independent medical examination or if the probation officer waives any right to request an independent medical examination. If the probation officer does not present the results of an independent medical examination within twenty calendar days after the employer provides notice to the probation officer that the report has been received by the employer, the probation officer is deemed to have waived the right to present the results of the independent medical examination.

E. The employer shall make a reasonable good faith effort to deliver the report to the probation officer.

F. The physician may consider and report on only the probation officer's medical or other records that are directly relevant to the actions in question and when conducting the examination, including medical records that record preexisting conditions that are relevant to the examination. The physician may additionally consider and report any condition of the probation officer that the physician identifies during the course of the physical examination and that endangers the health and safety of the probation officer or the community.

G. The employer shall not take any final action until after the probation officer has had at least twenty calendar days to review the report unless the probation officer waives the twenty-day period or the employer grants an extension.

H. This section does not prohibit the preexamination materials from being used in any proceeding held pursuant to section 38-1134.

I. Providing the preexamination materials to the person conducting the independent examination of the probation officer does not change the disclosure requirements under section 38-1134.

J. For the purposes of this section:

1. " Independent medical examination" means an assessment that is requested by a probation officer, that is conducted by a physician who is licensed pursuant to title 32, chapter 13 or 17 and that is used to provide a second, independent opinion of a current probation officer who has been determined to not be able to perform essential functions of the job as a result of observation and a subsequent employer-ordered physical examination.

2. " Preexamination materials" means all information or materials that the employer gives to the physician who conducts the physical examination and that serve as the basis for the examination.