Pre-Employment Medical Exams
Issue #76
October, 20, 2008
Many employers conduct post-offer, pre-employment medical examinations that are related to the job for which the individual has applied. Under the federal Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA), employers may require a pre-employment medical examination to determine if an applicant can safely perform the job requirements "after a job offer has been extended, but before the candidate has commenced work."
In Leonel v. American Airlines, Inc., the U.S. Court of Appeals for the Ninth Circuit held that an employer violates the ADA by requiring applicants to complete a pre-employment medical examination before background checks and other non-medical inquiries had been completed.
"Real" Job Offers
According to the Equal Employment Opportunity Commission (EEOC), a job offer is "real" if all non-medical components of the application process have been completed or it is shown that they could not reasonable have been completed before issuing the offer. The EEOC describes a "real job offer" in its Enforcement Guidance titled Preemployment Disability-Related Questions and Medical Examinations as follows:
Since an employer can ask disability-related questions and require medical examinations after a job offer, it is important that the job offer be real. A job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer. Of course, there are times when an employer cannot reasonably obtain and evaluate all of non-medical information at the pre-offer stage. If an employer can show that it's the case, the offer would still be considered a real offer.
Pre-Employment Examinations Must Be Performed Last
The court reasoned that the ADA prohibits medial inquiries or consideration of medical information until after a “real” job offer has been made. The court relied upon the U.S. Equal Employment Opportunity Commission‘s ADA Technical Assistant Manual on the Employment Provisions of the ADA, which in Section 6.4, states:
The ADA recognizes that employers may need to conduct medical examinations to determine if an applicant can perform certain jobs effectively and safely. The ADA requires only that such examinations be conducted as a separate, second step of the selection process, after an individual has met all other job pre-requisites. The employer may make a job offer to such an individual, conditioned on the satisfactory outcome of a medial examination or inquiry, providing that the employer requires such an examination or inquiry for all entering employees in a particular job category, not merely individuals with know disabilities, or those whom the employer believes may have a disability.
What Employer Should Consider
Employers should audit their hiring procedures to ensure compliance with the ADA and FEHA. In particular, medical examinations should occur as the final step in the pre-employment process. Furthermore, when the medical exam is the last step and “all non-medical components” of the hiring process are completed, applicants are able to “know when they have been denied employment on medical grounds."
Kempkey Insurance Services goes beyond insurance by designing and implementing risk management programs for growth oriented businesses. We help our clients maximize the value of their insurance dollars and minimize their potential for unwanted surprises. Ed Kempkey can be contacted at (888) 536-7539 extension 2188, or at ed@kempkey.com.