Matter of Cadet and Section 913 Fitness Exams

In fitness exams, employees can’t ‘take the fifth’

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On Board Online • Legal Agenda • May 12, 2008
By the New York State Association of School Attorneys
May a teacher refuse to answer questions about his or her mental or physical health? Can a medical examination conducted in accordance with the relevant state statute violate an employee’s rights against self-incrimination? School district leaders can be confident that the answer to both of these questions is “no.”

Education Law section 913 authorizes a board of education to have a medical examination of an employee conducted when questions arise as to the employee’s physical or mental health. The statute states that the board of education of any school district “shall be empowered to require any person employed by the board of education … to submit to a medical examination in order to determine the physical or mental capacity of such person to perform his or her duties.”

The law specifies that the exam must be performed either by the district’s director of school health services or by another physician or healthcare provider of the employee’s choice. The employee has the right to be accompanied to the exam by a physician or other qualified person of his or her choice.

The results of such examination may lead to discipline of the employee for incompetence. The authority granted to a board of education pursuant to this provision is quite broad, but leaves much of the specifics open to interpretation. For example, the statute is silent regarding the degree to which a medical examiner may delve into an employee’s past. However, implicit in the authority granted by the Education Law is the doctor’s right to question the employee about past medical issues in order to make a comprehensive determination as to the employee’s ability to perform his or her duties.

 What if an employee refuses to answer questions about his or her medical history under a theory of self-incrimination? There is no case law that answers this question directly. If such an issue arises in your district, the employee’s attorney or union representative may cite Matter of Cadet, an 11-year-old decision issued by the commissioner of education in which a physical education teacher in New York City refused to answer questions about an alleged romantic relationship with a student.

The teacher was offered immunity against criminal prosecution.

Nevertheless, a hearing panel convened under Education Law section 3020-a dismissed an insubordination charge based on the teacher’s refusal to answer questions, and the commissioner of education upheld that decision.

The commissioner’s ruling focused in part on the significance of the fact that the teacher had been granted immunity from criminal prosecution. As noted by the school district in Cadet, courts have recognized the right of a public employer to hold an employee accountable for insubordination after an employee refuses to answer questions regarding work-related conduct when immunity from criminal prosecution has been granted. However, the commissioner found such cases to be inapplicable because criminal prosecution was not an issue in Cadet, and immunity granted to the teacher would not protect him from charges being preferred pursuant to section 3020-a.

Nor was the commissioner swayed by the fact that both an executive order issued by the mayor of New York City and a resolution by the board of education stated that failure to answer questions regarding work-related conduct could result in disciplinary action under certain circumstances. The commissioner noted that the hearing panel found the alleged obligation of the teacher to testify was in conflict with section 3020-a and that “home rule principles found in the New York State Constitution generally give preference to state law where it conflicts with local law.”

Given this unfavorable ruling by the commissioner, how can a school district expect to overcome an employee’s claim against self-incrimination in the context of a medical exam? The answer is that such exams are conducted not under section 3020-a but section 913 of the Education Law, and different standards apply.

Schools are responsible for the health, safety and welfare of students. Although the principles in Matter of Cadet regarding freedom from self-incrimination are noteworthy, they do not supercede a school board’s right and obligation to question the fitness of its teachers. The Legislature recognized this through the passage of section 913. If an employee undergoing an examination in accordance with section 913 had a right to remain mute when questioned about his or her mental or physical health, the section of law would be rendered meaningless. This would be contrary to the legislative intent.
Although the specific issue of self-incrimination during medical exams has not been ruled upon by a court or the commissioner, school boards in New York State should be confident that it is within their right to require employees to answer questions posed by the physician, and to answer truthfully, in accordance with the provisions of section 913. Should an employee refuse to cooperate, this may form the basis of insubordination charge against a tenured teacher pursuant to Education Law section 3020-a.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was prepared by Thomas M. Volz and Christine LaPlace of Guercio & Guercio in Nassau County.