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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.