The U.S. Department of Justice recently published a set of
answers to common questions about how the Americans with
Disabilities Act affects the hiring of police officers.  The
principles involved apply to other occupations as well.

Jamal Mazrui
National Council on Disability
Email: 74444.1076@compuserve.com

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U.S. Department of Justice
Civil Rights Division
Disability Rights Section







QUESTIONS AND ANSWERS:
THE AMERICANS WITH DISABILITIES ACT
AND HIRING POLICE OFFICERS


	The Americans with Disabilities Act, or ADA, is a civil rights 
law guaranteeing equal opportunity to jobs for qualified 
individuals with disabilities.  The following questions and 
answers respond to the concerns most commonly raised by police 
departments.  

	Further information about the ADA's employment requirements 
may be obtained from the Equal Employment Opportunity Commission 
at 800-669-4000 (voice) or 800-669-6820 (TDD).  Other ADA 
information is available through the Department of Justice's ADA 
Information Line at 800-514-0301 (voice) or 800-514-0383 (TDD).

1.	Q:	Who is a "qualified individual with a disability" for 
employment? 

	A:	A qualified individual with a disability is an employee or 
job applicant who meets legitimate skill, experience, education, 
or other requirements of an employment position that he or she 
holds or seeks.  The person must also be able to perform the 
"essential" (as opposed to marginal or incidental) functions of 
the position either with or without reasonable accommodation.  
Job requirements that screen out or tend to screen out people 
with disabilities are legitimate only if they are job-related and 
consistent with business necessity.

2.	Q:	The ADA prohibits making disability-related inquiries or 
giving applicants for police jobs medical examinations until a 
conditional offer of employment is made.  Why? 

	A:	In the past, people with disabilities, particularly those 
with hidden disabilities, were denied jobs once potential 
employers found out about their disabilities.  The ADA seeks to 
prohibit discrimination by limiting an employer's knowledge of an 
applicant's disability to a later stage of the job application 
process.  Under the ADA an employer may only ask about an 
applicant's disability or give a medical examination after the 
employer has made a job offer.  The job offer can be conditioned 
on successfully passing a medical examination.  Thus, if the 
person with a disability is denied the job because of information 
obtained from the medical examination or because of the 
applicant's disability, the reason for this decision is out in 
the open.  This procedure should limit impermissible 
consideration of disability.

3.	Q:	I know I can't give a job applicant a medical exam before a 
conditional job offer is made.  But what about physical agility 
and physical fitness tests? 

	A:	You can give job applicants tests measuring an applicant's 
ability to perform job-related tasks or physical fitness tests 
(tests measuring performance of running, lifting, etc.) before
any job offer is made.  Tests that measure simply an applicant's 
ability to perform a task are not considered to be medical 
examinations.  But remember, job requirements that screen out or 
tend to screen out persons with disabilities are legitimate only 
if they are job-related and consistent with business necessity. 

4.	Q:	But to limit the police department's liability, I need to 
get a medical approval that it's o.k. for a job applicant to take 
the physical fitness test.  Doesn't the ADA create a catch-22 for 
police departments? 

	A:	No, the ADA's prohibition on medical exams does not make it 
illegal for a police department to ask an applicant to provide a 
certification from a doctor that he or she can safely perform the 
physical fitness test.  The ADA allows an employer to require a 
limited medical certification in these circumstances.  The 
medical certification should only indicate whether or not the 
individual can safely perform the test and should not contain any 
medical information or explanation.  The police department may 
also ask the applicant to sign a waiver releasing the employer 
from liability for injuries during the test resulting from any 
physical or mental disorders. 

5.	Q:	Recently a job applicant for a police officer's job came 
into the police department with fingers that were visibly 
impaired.  The police department required that he demonstrate 
that he could pull the trigger on the police issue firearm and 
reload it before a conditional job offer was made.  Did this 
violate the ADA? 

	A:	No.  If an individual has a known disability that would 
reasonably appear to interfere with or prevent performance of job 
functions, that person may be asked to demonstrate how these 
functions will be performed, even if other applicants are not 
asked to do so. 

6.	Q:	Can I refuse to consider an applicant because of his 
current use of illegal drugs?

	A:	Yes, individuals who currently engage in the illegal use of 
drugs are specifically excluded from the definition of an 
"individual with a disability" when an employer takes action on 
the basis of their current use.

7.	Q:	What about applicants with a history of illegal drug use? 
Do they have rights under the ADA?

	A:	It depends.  Casual drug use is not a disability under the 
ADA.  Only individuals who are addicted to drugs, have a history 
of addiction, or who are regarded as being addicted have an 
impairment under the law.  In order for an individual's drug 
addiction to be considered a disability under the ADA, it would 
have to pose a substantial limitation on one or more major life 
activities.  In addition, the individual could not currently be 
using illegal drugs.  Denying employment to job applicants solely 
because of a history of casual drug use would not raise ADA 
concerns.  On the other hand, policies that screen out applicants 
because of a history of addiction or treatment for addiction must 
be carefully scrutinized to ensure that the policies are 
job-related and consistent with business necessity.  If safety is 
asserted as a justification for such a policy, then the employer 
must be able to show that individuals
excluded because of a history of drug addiction or treatment 
would pose a direct threat -- i.e., 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.  Again, individuals who currently use illegal 
drugs, even users who are addicted, may be denied employment 
because of their current use.

8.	Q:	May an applicant be asked prior to a conditional job offer 
whether he or she has ever used illegal drugs or been arrested 
for any reason? 

	A:	Yes.  It does not violate the ADA to ask whether the 
applicant has ever used illegal drugs or been arrested for such 
use.  However, a law enforcement agency may not ask at the 
pre-offer stage about the frequency of past illegal drug use or 
whether the applicant has ever been addicted to drugs or 
undergone treatment for addiction. 

9.	Q:  Can I disqualify all applicants with felony convictions 
even though a former addict with a felony drug conviction would 
be excluded?

	A:	Yes, as long as you can show that the exclusion is 
job-related and consistent with business necessity.

10.	Q:	Does the ADA have any impact on the use of drug-testing?

	A:	No.  Police departments may subject current employees to 
testing for illegal use of drugs and may require job applicants 
to undergo such testing at any stage of the application process.
	
11.	Q:	If an applicant tests positive for illegal drug use, can I 
ask whether he or she is using any prescription medications under 
a doctor's care that may have caused a positive result? 

	A:	Yes.  Inquiries into the use of prescription drugs are 
permitted in response to a positive drug test, even though the 
answers may disclose information about a disability. 	

12.	Q:	Are alcoholics covered by the ADA? 

	A.	Yes.  While a current illegal user of drugs is not 
protected by the ADA if an employer acts on the basis of such 
use, a person who currently uses alcohol is not automatically 
denied protection.  An alcoholic is a person with a disability 
and is protected by the ADA if he or she is qualified to perform 
the essential functions of the job.  An employer may be required 
to provide an accommodation to an alcoholic.  However, an 
employer can discipline, discharge or deny employment to an 
alcoholic whose use of alcohol adversely affects job performance 
or conduct.  An employer also may prohibit the use of alcohol in 
the workplace and can require that employees not be under the 
influence of alcohol.


13.	Q:	Can police departments still use polygraph tests at the 
application stage or do we have to wait until a conditional job 
offer has been made?

	A:	You can conduct polygraph exams before a conditional job 
offer is made.  However, employers must exercise care not to ask 
any prohibited disability-related inquiries in administering the 
pre-offer polygraph exam. 

14.	Q:	May a police department wait to conduct a background check 
on applicants until after the information from the medical exam 
has been reviewed -- which is after a conditional offer of 
employment has been made? 

	A:	Yes, in certain circumstances.  In general, a job offer is 
not viewed as bona fide under the ADA, unless an employer has 
evaluated all relevant non-medical information which, from a 
practical and legal perspective, could reasonably have been 
analyzed prior to extending the offer.  However, a law 
enforcement employer may be able to demonstrate that a proper 
background check for law enforcement personnel could not, from a 
practical perspective, be performed pre-offer because of the need 
to consult medical records and personnel as part of the security 
clearance process.  Where the police department uses the 
information from the medical exam during the background check, 
doing the background check at the post-offer stage saves the 
police department the cost of doing a second background check.

		Federal investigators will carefully scrutinize situations 
in which a police department withdraws an offer after a 
post-offer background examination to determine whether the 
withdrawal was based on non-medical information in the background 
check or on information obtained through post-offer medical 
examinations and disability-related inquiries.  If it is 
determined that the offer was withdrawn because of the 
applicant's disability, then the police department must 
demonstrate that the reasons for the withdrawal are job-related 
and consistent with business necessity. 

15.	Q:	The police department hires from a pool of applicants that 
have received conditional offers.  Does the ADA allow a police 
department to re-rank the applicants in the pool based on the 
results of the medical examination? 

	A:	Yes, if certain procedures are followed.  The ADA allows 
police departments to make conditional job offers to a pool of 
applicants that is larger than the number of currently available 
vacancies if an employer can demonstrate that, for legitimate 
reasons, it must provide a certain number of offers to fill 
current or anticipated vacancies.  A police department must 
comply with the ADA when taking individuals out of the pool to 
fill actual vacancies.  It must notify an individual (orally or 
in writing) if his or her placement into an actual vacancy is in 
any way adversely affected by the results of a post-offer medical 
examination or disability-related question.  The police 
department must be able to demonstrate that the basis for any 
adverse action is job-related and consistent with business 
necessity. 


16.	Q:	If an employee is injured or becomes ill can he or she be 
required to take a medical examination?

	A:	Yes, as long as the examination is job-related and 
consistent with business necessity.

17.	Q:	Do I have to create another job for an employee who, 
because of disability, can no longer perform the essential 
functions of her job even with reasonable accommodation?

	A:	No.  The ADA does not require an employer to create jobs 
for people with disabilities.  However, the employee must be 
reassigned to a vacant position for which the individual is 
qualified if it does not involve a promotion and it would not 
result in an undue hardship.  A municipal rule prohibiting 
transfers between different municipal personnel systems does not 
automatically constitute an undue hardship.  Whether it would be 
an undue hardship to modify a no-transfer rule in a particular 
situation must be evaluated on a case-by-case basis.

18.	Q:	May a police department create a light duty job category 
reserved only for incumbent officers without offering identical 
positions to job applicants?  

	A:	Yes.  A police department may create a specific class of 
light duty jobs that are limited to incumbent police officers.

19.	Q:	If an officer wants to stay in a street job and his 
supervisor wants him to go on light duty because of a disability, 
can the supervisor force him to accept a light duty position? 

	A:	It depends.  If the employee can still perform the 
essential functions of the "street job" with or without 
reasonable accommodation, and without being a direct threat to 
health or safety, he or she cannot be forced into a light duty 
position because of a disability.  

20.	Q:	If a charging party receives a right to sue letter, does 
that mean that the government has found that there has been a 
violation of the ADA? 

	A:	No.  The receipt of a right to sue letter in and of itself 
only signifies that the complainant has exhausted administrative 
remedies under title I and is now entitled to bring a lawsuit if 
he or she chooses.  In some cases a right to sue letter may be 
accompanied by an EEOC finding that there is reasonable cause to 
believe that an ADA violation has occurred.  In this situation, 
it is the EEOC finding and not the existence of the right to sue 
letter that establishes reasonable cause.  More frequently a 
right to sue letter is issued after a charge has been dismissed 
for jurisdictional reasons, for lack of merit, or because the 
charging party has requested the letter and the government has 
determined that it will not be able to complete its investigation 
in a timely manner.  

Note: Reproduction of this document is encouraged.



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