Tuesday, September 12, 2017

A refresher on pre-employment medical examinations

Do you require medical exams of applicants before they start working for you? If so, do you know the rules that the ADA requires you follow?

Last month, the EEOC settled a lawsuit it brought against a Florida staffing firm for alleged unlawful pre-employment medical exams under the ADA, which serves as a good reminder for employers of these rules.

According to the lawsuit, the firm asked applicants to complete a paper application package with a detailed medical questionnaire—including sensitive health information and included numerous disability-related questions—before the company offered the applicant a position or placement.

This settlement is good reminder that the ADA has strict rules regulating when an employer can, and cannot, ask individuals for medical information prior to the start of employment. 

The ADA applies a traffic-light approach to employer-mandated medical exams.
  • Red Light (prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that a job related. 
  • Yellow Light (after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
  • Green Light (after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

Pay attention to state laws, as well. For example, Ohio prohibits an employer from shifting the cost of any pre-employment medical exam to an employee: “No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.”

According to EEOC Regional Attorney Robert Weisberg, “Congress recognized that prohibiting pre-offer medical inquiries was necessary to prevent applicants from being subjected to harmful and unfounded stereotypes on the basis of an actual or perceived disability.”Further, “As staffing agencies now play a large role in our nation’s workforce, eliminating any discrimination in their screening practices is increasingly important to ensuring that workers with disabilities have equal access to work opportunities.”

Sage advice.