Thursday, November 15, 2018

Do you know? Pre-employment medical examinations

A local mayor has gotten himself in some hot water for his selective use of pre-employment medical examinations for hirees. How selective? According to WKYC, one woman claims that the mayor required her and other women, but not men, to be examined by his personal doctor. For his part, the mayor denies the allegations as an act of a "fertile imagination," and claims that he sends all city workers, male and female, to the same doctor for pre-employment exams.

Why would her allegations rise to the level of unlawful activity?

Aside from the obvious sex discrimination (an employer cannot apply one set of policies to male employees a different set to female employees), it also violates the ADA's requirements for pre-employment medical examinations.

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 are 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.

Because these exams fall in the "Green Light" category, the city is in the clear, right? Wrong. Pre-employment medical exams are permitted as long as the employer does so for all entering employees in the same job category. This employee alleges the females were singled out. Thus, unless she worked with all women in her job category (another legal red flag), the city violated the ADA by sending some, but not all, employees for pre-employment medical exams.

Also pay attention to state laws when conducting medical exams. 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."

As for this mayor, these allegations are just the tip of his legal iceberg. It's also alleged that he uses the n-word to refer to African American residents, and sexual harasses female employees by talking about his private parts and how pistachios contribute to his sexual prowess. Sounds like a great place to work.

*Photo by rawpixel on Unsplash