Appeals from Psychological or Medical Disqualification of Applicants for Law Enforcement or Firefighters Positions
New Jersey Civil Service law requires that government hiring be based on a candidate’s merit, not nepotism or favoritism. Wherever possible merit should be determined by a competitive civil service examination. For law enforcement officer and firefighter candidates the test is the first step. If they pass the examination, they are placed on a list of eligible candidates. Once an applicant is placed on the list and his or her number on the list is reached, the prospective employer will conduct a background investigation, interview, and physical examination and psychological examinations. (Because of the Americans with Disabilities Act, medical and psychological examination cannot be required until after and offer off employment has been extended, although the employer can condition employment on passing a medical and/or psychological examination.) Civil service regulations allow a candidate to be removed from an eligible list if she “Is physically or psychologically unfit to perform effectively the duties of the title.” An exception applies when the “an injury incurred in the armed forces… unless the Commissioner [of Civil Service] considers the condition incapacitating.”
It is not uncommon for perfectly fit candidates on the eligible list to fail their medical or psychological examination. Fortunately, though, Civil Service regulations and New Jersey’s Civil Service Act have a method to appeal adverse findings in psychological and medical examinations to the Civil Service Commission.
The first thing to bear in mind is that there is an extremely short period to appeal – written appeals must be filed in not less that 20 days. The appeal periods are strict as well as short.
The burden of proof, unlike the typical appeal, is on the employer. Because the core value of Civil Service under New Jersey’s Constitution is merit and fitness, the employer must prove that the results of the physical or medical examination render the candidate “unfit to serve.” The employer (known under the regulations and Civil Service Act as the “appointing authority”) therefore must has to prove that the medical or personality trait at issue causes the candidate to be unfit to serve in the position.
The Supreme Court of New Jersey has issued an opinion listing the precise things which the employer must prove to be successful in an appeal. First, the employer must show the characteristics or traits which the examination was measuring or testing. Second, the employer must demonstrate how each of these traits or characteristics are necessary for the position. Third, the employer must prove through medically or psychologically accepted methods that the examination is reasonably likely to predict or is highly correlative of the work behavior which it is designed to measure.
If the agency decides to reject a candidate it must request that the Civil Service Commission remove the applicant from the eligible list for the relevant psychological or medical reason, with a copy of the report upon which it is relying. The report must aver that the psychological or medical condition renders the candidate unfit for the position. One report must e signed by the physician, psychologist or psychiatrist.
When the employer receives notice of the applicant’s appeal, it has 20 days to submit all background information, investigations and complete psychological and/or medical reports to the Commission and give copies to the applicant or her attorney. In order to be successful on the appeal an applicant should then undergo and examination by her own physician, psychologist or psychiatrist.
Once the appeal has been filed and the submissions are complete, the Civil Service Commission has one of two options – it can decide the appeal on a review of the written submissions, or it can send medical appeals to the New Jersey Personnel Medical Examiners Panel (Examiners Panel) and psychological appeals to the New Jersey Personnel Medical Review Panel (Review Panel) whose members are medical and psychological professionals. If the Commission sends the appeal to either panel, either the employer or the applicant have the right to ask for a person appearance to argue their case themselves or through their attorney. Oftentimes the Commission will decide to send the applicant to undergo an independent evaluation, upon which it will then rely.
McLaughlin & Nardi’s employment attorneys represent applicants for positions as police officers, firefighters, corrections officers, and other law enforcement officers, in appeals to the Civil Service Commission over rejections because of alleged psychological or medical reasons. Call us at (973) 890-0004 to set up a consultation or e-mail us.