New Jersey disability laws apply to civil service employment decisions such as hiring and promotion. However, applicants with physical or psychological conditions must still be able to perform the essential functions of their prospective jobs with reasonable accommodation. Fortunately, New Jersey civil service law provides a process to protect the rights of applicants while ensuring that they are able to provide the vital public services of their prospective positions.
The Hiring and Promotion Process
The Civil Service Commission’s Regulations provide for disqualification from employment if an applicant:
Is physically or psychologically unfit to perform effectively the duties of the title. However, an injury incurred in the armed forces shall not be considered a disqualification unless the Chairperson or designee considers the condition incapacitating.
If an applicant is found physically or psychologically unfit, the employer may request that the Commission remove her name from an applicant list because her medical or psychological renders her unable to effectively perform the duties of her prospective job. The request must include a report prepared and signed by a New Jersey licensed physician, psychologist or psychiatrist, expressly finding the applicant medically or psychologically unqualified for the title.
In order to comply with the Federal Americans with Disabilities Act and New Jersey Law Against Discrimination, prospective employers may not require a medical or psychological examination until after an offer of employment has been extended. However, the examination may be prior to appointment to the new position.
The prospective employer may condition an employment offer on successful results of these examinations, if the offers of employments to all applicants are subject to the same conditions. If the Commission determines that the applicant should be disqualified, it must notify her and advise her of her appeal rights and requirements.
A disqualified applicant has 20 days to file a written notice of appeal with the New Jersey Civil Service Commission. Within 20 days receipt of notice of the appeal, the employer must submit to the Commission all background information, including investigations and complete medical or psychological reports upon which the removal request was based. Failure to timely do so may result in denial of the request, although the Commission may, and normally does, extend this time. Copies must be provided by the employer to the appellant or her appellant’s attorney or to a New Jersey licensed psychologist or psychiatrist of the appellant’s choice upon request.
The applicant may submit a report from a New Jersey licensed physician, psychologist or psychiatrist to the Board, with copies to the employer. It is virtually impossible to succeed in an appeal without one. The information requirement for the reports from both the employer and applicant includes: The professional’s type of license and educational degree; the examination’s or interview’s length; the diagnosis, behavioral pattern or specific reasons for the professional’s recommendation; a specific finding about the appellant’s qualifications for effective performance of the title’s duties; and all tests that have been administered, and the raw data, protocols, and profiles from these tests.
Once the appeal has been filed and the submissions submitted by the applicant and the employer, the New Jersey Civil Service Commission may make its decision based on the documentary record; or have disqualification appeals heard by either the New Jersey Personnel Medical Review Panel (Review Panel) or the New Jersey Personnel Medical Examiners Panel (Examiners Panel). The Review Panel is made up of professionals in the psychological field. Either panel may request additional reports, examinations or other materials.
When the New Jersey Civil Service Commission refers an appeal to one of the panels, the applicant and employer both have the right to appear. The request must be made within 10 days after the notice that the appeal has been submitted to a Panel has been received. If no appearance is requested, the panel will decide the appeal on the documents submitted. In addition to making arguments, the appearance is a good way for the panel members to see the appellant as more than just a pile of papers. It is often beneficial for the appellant to appear.
The Panel will prepare a written report and recommendation for the New Jersey Civil Service Commission. The applicant and employer both get copies. Either may file written exceptions with the Commission within ten days after receiving the panel’s report. Cross-exceptions may be filed within five days thereafter.
The Commission may also refer an appellant for an independent professional evaluation. If the referral was caused by the inadequacy of a professional report submitted by one of the parties, the Commission may assess costs and penalties against that party.
Accommodation and Waiver of Examinations for Persons with Disabilities.
The New Jersey Civil Service Commission must make reasonable accommodation for otherwise qualified applications, and notify the candidate of those accommodations. For instance, upon request the Commission may waive an examination for a qualified candidate or a provisional who has a disability which makes it psychologically or physically impracticable participate in a particular testing procedure, provided that the disability does not prevent the applicant satisfactorily performing the job’s requirements in actual service.
Requests for waivers must be in writing. If reasonable accommodation to take the test can be made, it will be and the waiver request will be denied. If reasonable accommodation is not possible, the Commission will decide whether to grant a waiver, and if granted, whether the candidate will be employed or placed on an applicant list and in appropriate cases, granted seniority.
Call us at (973) 890-0004 or fill out the contact form on this page to schedule a consultation with one of our New Jersey civil service attorneys. We can help.