By Karen J. Kruger, Esq., Funk and Bolton, P.A., Baltimore, Maryland; Vice Chair, IACP Legal Officers’ Section; and Counsel, Maryland Chiefs of Police Association
itle I of the Americans with Disabilities Act prohibits employment discrimination on the basis of disability.1 Under the law and the regulations developed by the U.S. Department of Justice, Title I prohibits employers from requiring medical examinations or making disability-related inquiries of employees unless such examinations or inquiries are job-related and consistent with business necessity.2
This means that when an employee may be unable to work because of a medical condition or an injury, the employer is entitled only to the medical information necessary to determine whether the employee can perform the essential functions of his or her job with or without reasonable accommodations and without posing a direct safety threat. Accordingly, in most situations, an employer or an employer’s medical advisor cannot require the employee to disclose his or her entire medical history because those records are likely to contain information that is not related to whether the employee can perform the essential functions of the job.3 In addition, any medical information that the employer obtains must be treated as confidential, including that related to a workers’ compensation or occupational injury claim, and can be disclosed only under limited circumstances.4
Medical examinations and medical inquiries that are not job related and consistent with business necessity or unrelated to the employee’s fitness to perform the essential functions are therefore prohibited. Moreover, if the examinations are improperly timed, such as during the time an employee is still undergoing treatment or far beyond the time of an injury or medical event, unless there is an indication that the employee cannot perform the essential functions, such inquiries are unlawful.5
Establishing Job Relatedness and Business Necessity
How the does a law enforcement agency ensure that its fitness-for-duty examinations or independent medical evaluations are in fact job related and consistent with business necessity? One important starting point is to develop comprehensive, accurate, and up-to-date job descriptions that designate the essential functions of the job of police officer.
A successful job description starts with a job task analysis—that is, a study of what specific functions are inherent in the performance of the job, delineating tasks that are essential as opposed to incidental to the job. Once these tasks are fully identified, consideration must be given to when the task is learned by the employee, what level of competent performance is expected, in which different settings the task may be performed, and what the consequences are of inadequate performance of the task.
Key to identifying the essentialness of a given task is whether the position exists for the purpose of performing the function. The job of police officer exists to enforce the law, which requires competent performance of a multitude of tasks. Often, police officer tasks must be performed by a single employee, and a degree of expertise is required to accomplish the task. An important inquiry is how often a task is performed, while also examining the task’s criticality. In police work, some significant tasks are rarely performed but are essential in their criticality—for example, firing a weapon.
Few would disagree that making arrests is an essential function of a police officer, yet that two-word phrase offers little to describe how, when, and under what circumstances arrests are made. It offers little detail about the physical acts and the mental processes that underlie successfully and safely making an arrest. Perhaps a better description of that task would be “takes suspects into custody using reasonable physical force if necessary and by applying handcuffs and transporting them to another location, even in the face of suspect resistance and only upon a determination that there is probable cause to believe that the suspect committed a crime.” This more detailed description at least begins to describe the physical demands and mental acuity needed to properly make an arrest, even if it is a bit wordy.
How can an agency identify these essential functions? The people who perform the job of police officers are in the best positions to explain what the job entails. An agency can present to a representative sampling of officers a “raw task list” generated by other experienced officers. This list should include not only the activities of the job but also the equipment used, the conditions under which officers must work, and the physical and mental aspects of the job. Officers should be asked to rate each task on its criticality, its frequency, and when it is learned. The idea is to identify those tasks that are fundamental, basic, necessary, or vital to the job. Elimination of any such task would be inconsistent with business necessity or the reason why the job exists.
Once the data are collected, follow-up interviews may be necessary to further identify observable job behaviors that were missing from the initial raw task list. The resulting core job description should name the essential functions that all sworn officers are expected to perform and be fit to perform. The core job description becomes the template against which medical evaluations should be considered.6 In other words, any medical inquiry with respect to fitness for duty must be made with reference to the actual job duties of the employee who is being examined. This means, of course, that the examining medical practitioner must be aware of what the essential job functions are and be prepared to explain how the employee’s state of health impacts specifics of those functions.
An employer may request or require a medical fitness examination only when
- an employee’s conduct creates a reasonable belief that a threat to the health or safety of the employee or others or to agency property exists, or
- there is objective evidence that the employee cannot perform the essential job functions.
These grounds may be established by a supervisor’s observations or reliable reports of others of a police officer’s possible lack of fitness for duty. Employees may also self-report difficulties that include physical maladies and mental or emotional problems.
Agency medical providers must be informed as to why the examination is being requested and instructed to limit their inquiries to only the medical data that are relevant to the basis of the examination and the actual job duties. Ideally, agencies should provide medical practitioners with medical guidelines that highlight how certain common or uncommon medical problems may negatively impact an employee’s fitness for law enforcement duty. To be valid, such guidelines must be developed in consultation with competent occupational physicians and psychologists.
An agency may require an employee to cooperate with the medical advisor. The purpose of the evaluation is to determine whether the employee can perform the essential functions in a safe manner and if there is a need for restrictions. If the employee’s condition is deemed to constitute a disability, an evaluation may be made to determine whether the employee can perform the job of police officer with or without reasonable accommodations. The medical advisor is permitted to employ any tests or diagnostic studies that are medically warranted and, in some cases, is permitted to review relevant medical history. In all cases, medical information collected should be kept confidential. Generally, the practitioner should report only that the employee is fit for duty, the employee is fit for work with limitations, or the employee is not fit. However, the physician’s notes must reflect the specific basis for the opinion and its relation to the actual job duties and the notes maintained by the physician in case of future disputes.
A law enforcement agency and the public are best served by relying on the agency’s medical provider rather than on the employee’s own physician. Physicians are advocates for their patients and thus might not provide the most objective evaluation, knowing that a patient does or does not wish to return to work. Even more significantly, outside physicians have not been trained in the specifics of law enforcement work and may not be aware of what it means to “make an arrest” or “conduct a vehicle stop.” They are, therefore, not able to evaluate the employee in relation to his or her actual job functions as they are performed in the real world.
Agencies should review their job descriptions for thoroughness, accuracy, and currency and should seek competent legal advice before instituting any new policies or programs. All communities benefit when law enforcement agencies handle employee personnel matters in a nondiscriminatory manner that reflects the best and fairest judgment of its leaders. Compliance with the spirit and the letter of the Americans with Disabilities Act is a step in the right direction. ♦
142 U.S.C. §§ 12111 et seq.
242 U.S.C. § 12112(d)(4); 29 C.F.R. § 1630.14(c)
3U.S. Equal Employment Opportunity Commission, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, October 10, 1995, http://www.eeoc.gov/policy/docs/preemp.html (accessed November 19, 2012).
4See 42 U.S.C. §§ 12112(d)(3)(B), 12112(d)(4)(C); 29 C.F.R. §§ 1630.14(b)(1), 1630.14(c)(1), 1630.14(d)(1).
5See 42 U.S.C. § 12112(d)(4).
6The core job description also is useful for screening candidates, developing promotional tests, establishing state certification standards, and developing training objectives.
Please cite as:
Karen J. Kruger, "Essential Job Functions, Disabling Conditions and the Americans with Disabilities Act," Chief’s Counsel, The Police Chief 80 (January 2013): 12–13.