Principles for Public Safety Employment

If a non-peace officer employee of a public safety agency does not fit into one of the other enumerated categories, a consumer credit report should not be used as part of the pre employment process. If an agency is provided with Criminal Offender Record Information (CORI) data by the California Department of Justice, the DOJ must also provide a copy of the data to the current or prospective employee to whom the information relates. 23 D. L EGAL R ESTRICTIONS ON A CCESS TO M EDICAL I NFORMATION IN THE H IRING P ROCESS 1. O VERVIEW Public safety employees obviously must meet certain physical fitness requirements to perform their jobs effectively. In order to evaluate whether an applicant or employee meets the physical requirements of a job, a public safety employer will need access to confidential medical information of an applicant. While most law enforcement agencies properly rely on the POST Medical Screening Manual for guidance in this area, many departments are unaware that federal and state law restrict the timing of an employer’s acquisition of medical information about the medical conditions and impairments of applicants and employees. To ensure that employers do not improperly consider disabilities when evaluating applicants, both the federal Americans with Disabilities Act (“ADA”) 24 and the California Fair Employment and Housing Act (“FEHA”) 25 restrict an employer’s ability to ask questions about an applicant’s medical condition and/or to require an applicant to undergo a medical examination until after a “conditional offer of employment” has been made. Employers are also restricted from asking questions about disabilities prior to making a conditional offer of employment. 26 These laws apply to most employers, including public safety departments. According to the Equal Employment Opportunity Commission (“EEOC”), a “conditional offer of employment” is a “real” job offer that: 1) is made after the employer has evaluated all relevant non-medical information which could reasonably have been obtained and analyzed prior to making the offer; and 2) is conditioned upon acceptable medical information, such as passing a physical or psychological examination, that is directly related to job performance and business necessity. 27 An employer may not conduct medical examinations nor make medical inquiries of applicants until after the employer has evaluated all non-medical information in order for a conditional job offer to be considered a “real” offer. 28 In most cases, if an employer is still waiting for the results of, for example, a background check, that offer may not be considered a conditional offer of employment for purposes of the ADA. 29 In the very limited case where an employer can show it could not have reasonably obtained the non-medical information earlier, the employer would be allowed to collect such information after a conditional offer. 30 The EEOC has indicated that a polygraph examination for a peace officer applicant might be an example of a procedure that is

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 15