Depending on the job, sending an applicant for a medical exam may be necessary to ensure that the employee is physically qualified to perform the job duties. The federal Americans With Disabilities Act (“ADA”) and many state disability discrimination laws, however, put restrictions on when during the hiring process such medical exams can be done.
The hiring process is divided into two phases (pre-offer and post-offer) with different requirements during each phase. There are also limitations placed on medical exams after the employee is hired.
Under the ADA, during the pre-offer phase, all medical exams and questions regarding an applicant’s physical capabilities or disabilities are prohibited, even if they are related to the job. In other words, the employer needs to conduct all of the other types of screening and testing (reviewing resumes, interviews, etc.) and provide the successful candidate with a conditional offer of employment before a medical exam can be conducted. It should be noted that job skills testing is not a medical exam, even if it tests the employee’s physical strength or endurance. Thus, the employer can test an applicant’s ability to perform physical tasks, such as running and lifting, as long as the tests contain no medical component, such as monitoring the applicant’s heart rate or blood pressure during the test. Employers should be mindful, however, that while testing for current use of illegal drugs is not considered medical testing, testing for alcohol use is.
A “conditional offer” is a real job offer, usually demonstrated through the provision of a conditional offer letter. This letter would indicate that the employee will be hired as long as the employee satisfies certain conditions, one of which can be a required medical exam. Once the conditional offer is provided, the requirements of the next stage of hiring govern medical testing requirements.
At the post-offer phase, (once an offer is given but before the employee starts work), the employer can have the candidate take any medical exam, and can make any inquiries regarding the potential employee’s disabilities and how they might be accommodated, without regard to whether that exam or those inquiries are related to the job. The only requirement is that every employee who is offered a position in that same job category be put through the same inquiries and be given the same medical exam.
After an employee is hired and starts working, the only medical exams or disability-related inquiries that can be made are those that are “job-related and consistent with business necessity.”
Be sure your company’s hiring procedures are compliant with applicable laws. Consult with employment counsel to obtain guidance to best protect your company.