by Shawn P. Flaherty (Fall 2019)

Within the small stack of paperwork that a pension fund board collects from its newly hired full-time police and firefighter members is information concerning the new hire’s current medical condition and medical certification that the new hire is physically able to meet the requirements of his or her new job. The employing municipality or fire protection district is required by law to have all new candidates for hire undergo a comprehensive medical physical examination to determine that the candidate is capable of performing the job responsibilities and tasks as set forth in the job description. In turn, proof of the candidate’s passage of this examination needs to be forwarded to the respective pension fund for its candidate file.

Following the advent of the federal Americans With Disabilities Act (ADA)(42 U.S.C. §12101 et seq.) in 1990, a greater degree of scrutiny was placed on employers and limitations were established on the scope of medical inquiries that could be undertaken by would-be employers prior to the issuance of a conditional offer of employment to a prospective employee. The ADA mandates were ripe for employment-based litigation in the early 1990s, including a federal case in the City of Aurora filed by a police officer who claimed he was denied entry into the Aurora Police Pension Fund in violation of the ADA due to his diabetic condition. Holmes v. City of Aurora, 1995 WL 21606 (N.D. Ill. 1995). As a part of settling this litigation, the federal court issued a consent decree with the US Department of Justice and the State of Illinois that protects persons with disabilities from being denied entry into all Illinois police and firefighter pension funds in violation of the ADA.

Prior to 1995, Articles 3 and 4 of the Illinois Pension Code contained language that permitted police and firefighter pension funds to deny new hires from entering the pension fund for failing to meet certain physical or mental fitness requirements as established by the funds. Specifically, police pension funds were required to screen new hires and only admit into the pension fund those persons who were “found upon examination of a duly licensed physician or physicians selected by the Board to be physically and mentally fit to perform the duties of a policeman.” (40 ILCS 5/3-106).

Similarly, firefighter pension funds were required to admit new hires into the pension fund if the new hire “was found upon a medical examination by a duly licensed physician selected by the board to be then physically and mentally fit to perform the duties of a firefighter.” 40 ILCS 5/4-107(b)). Both sets of requirements were statutorily repealed with the adoption of P.A. 89-52 on June 30, 1995.

Following the adoption of P.A. 89-52, all new full-time hires who otherwise met the definition of a “police officer” or “firefighter” were allowed to enter the fund without a preliminary medical evaluation by the pension fund. In other words, if the new hire passed the entry-level medical examination required by the municipality or fire protection district, the pension fund was required to accept the new hire as a member. This significant change in a pension board’s processing of a new member into the fund does not eliminate the need of a pension board to request and file away entry-level medical information for its newest members.

Pension boards must be proactive with their municipalities and fire protection districts to ensure that pension boards are provided with some details of any preexisting medical conditions that the newly hired member may have. The best way to ensure the receipt of the appropriate information is to collect the requisite information from the entry-level medical provider through use of a physician certification form. This form will identify the name of the new member and be signed by the evaluating physician. While pension boards are no longer entitled by law to a full narrative of the physical condition of the new employees, they are allowed to request whether the new hire has heart disease, cancer, stroke, tuberculosis, or any disease of the lungs or respiratory tract. The physician will answer each question “yes” or “no” and then provide a description of any matters checked off as “yes”.

Police pension boards should consider retaining this information in the event a member files for a heart attack or stroke pension pursuant to Section 3-114.3 of the Code (40 ILCS 5/3-114.3). For firefighter pension boards, this information is important to file away for possible future use in the event the member ever files for an occupational disease disability pension pursuant to Section 4-110.1 of the Code (40 ILCS 5/4-110.1). This matter is more acutely important for firefighter pension funds since the occupational disease pensions cannot by law be provided unless the firefighter was free from the underlying condition at the time of hire.

While police and firefighter pension boards no longer serve as gatekeepers for entry into the funds, they remain fiduciaries to the fund. And among the many fiduciary duties of a pension fund trustee is to be careful and circumspect in awarding disability pensions to preserve the assets   of the fund. Obtaining pre-hire medical information and storing it in a sealed envelope within the pension file will assist current and future pension board members in better evaluating disability applications when they arise.