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State Personnel Management Manual
Advisory Memorandum # 94-12

0400 Affirmative Action
December 30, 1994

 To: Department and Agency Personnel and Affirmative Action Officers
 From: Virginia M. Apuzzo, Commissioner
 Subject: Civil Service Law Sections 55-b and 55-c: Americans With Disabilities Act

Civil Service Law section 55-b provides the State Civil Service Commission with the authority to determine up to 1,200 positions with duties such as can be performed by persons with a physical or mental disability who are found otherwise qualified to satisfactorily perform the duties of any such position. Upon such a determination by the Commission, section 55-b provides that such positions shall be classified in the non-competitive class, and may be filled by persons who have been certified by the Employee Health Service (EHS) of this department as being a person with a physical or mental disability, but capable of performing the duties of the position sought.

Section 55-c provides the Commission with the same authority with respect to 300 positions with duties such as can be performed by veterans with a physical or mental disability.

As we have previously advised you, (see Advisory Memorandum #92-03, in Section 2620 (F) of this manual) the Americans with Disabilities Act (ADA) prohibits employers from making any inquiries as to the nature and extent of an applicant's or eligible's disability or from conducting any medical examinations at the pre-offer stage. This memorandum is to serve as a reminder that such inquiries are prohibited with respect to all applicants, including 55-b and 55-c applicants.

Therefore, while applicants seeking appointment pursuant to section 55-b or 55-c must provide medical documentation to EHS as to their physical or mental disability in order to establish program eligibility, agencies nominating a 55-b or 55-c eligible for appointment may not make any further medical inquiries of such person regarding the nature and extent of their disability, or require him/her to undergo a medical examination by EHS unless:

  1. a conditional offer of appointment has been made;
  2. there are established physical/medical requirements for the position, and
  3. all entering employees are required to submit to a medical examination.

Agencies will have to determine whether a 55-b or 55-c eligible is capable of performing the duties of a specific position by making such inquiries, consistent with the ADA, as are made of all other eligibles. Please refer to the EEOC's Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act of 1990, issued under cover of Advisory Memorandum #94-04, (in this section of the manual), for guidance.

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