While the Americans with Disabilities Act has been around for some time, prudent employers would do well to periodically evaluate their interviewing and hiring practices to ensure that they do not run afoul of the restrictions related to medical inquires and/or examinations. The phasing out of the South Carolina Second Injury Fund should also cause public employers to review their hiring procedures and, specifically, the use of medical questionnaires. Such inquires and examinations are not prohibited, but they are strictly limited. It is important to remember that the rules differ between the pre-offer and post-offer stages of the hiring process. The rules change again after a new employee begins working. The following is a brief overview of the current rules related to pre-employment medical inquires and examinations.
Title I of the ADA contains a series of rules regarding the use of medical examinations and reasonable accommodation inquiries during both the employment application stage of the hiring process as well as after a person is hired. During the application process, an employer may not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. Even with these restrictions, an employer may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without a reasonable accommodation; the applicant will be able to perform job-related functions.1 An employer, however, may not ask applicants about job-related injuries or workers’ compensation history.
Employers may make conditional job offers to applicants. For example, the offer may be conditioned on the passage of pre-employment drug tests2, background checks and medical examinations. With regard to medical examinations, the ADA permits an employer to require medical examinations and ask medical questions including a workers’ compensation history following a conditional offer of employment. An employer may even condition employment on the results of a medical examination as long as all applicants are subject to such an examination regardless of disability. The ADA also requires that the information obtained during the medical examination be kept confidential.
Post-offer medical examinations and inquires do not have to be job-related or consistent with business necessity; however, the results of such examinations or inquiries cannot be used to withdraw a conditional offer of employment unless the employer can establish that the applicant is not qualified to perform the job. Thus, a conditional job offer can only be lawfully withdrawn if the medical examination establishes that the applicant, even with a reasonable accommodation, cannot perform an essential function of the job. Stated another way, if medical information obtained at the post-offer stage is used to withdraw a job offer, the information must be job-related and consistent with business necessity and the employer must show that there is no reasonable accommodation that would enable the applicant to perform the job’s essential functions. This is a very high standard, and the withdrawal of an offer of employment based upon the results of a post-offer medical examination should be made with great caution.
Despite the above-noted restrictions on the use of such information, an employer is permitted to ask an applicant about every past and current medical condition at the post-offer stage. Because of the restricted ability of employers to use information obtained during post-offer medical inquiries, many employers choose to limit post-offer medical examinations and inquiries to obtain only information that is necessary and relevant to essential job functions. Such a limitation, however, is not legally required.
While not directly related to the issue of pre-employment medical examinations, it should be noted that the ADA severely limits an employer’s ability to compel an employee, after they have started work, to undergo a medical examination or make any medical inquiries of the employee. There are, however, narrow exceptions to this restriction which are beyond the scope of this article. Suffice it to say that employers should consider carefully any decision to require a current employee to undergo a medical examination or to question an employee about his medical condition or history.
Under the Second Injury Fund, many public employers required applicants to complete medical questionnaires before being hired. For employees hired after July 1, 2008, such Second Injury Fund medical questionnaires are obsolete and should not be used prior to a conditional offer of employment. As noted above, an employer can make wide ranging medical inquiries at the post-offer/pre-employment stage of the hiring process. If an employer requires a medical questionnaire, it should be required of all prospective employees who receive a conditional offer of employment. Also as noted above, an employer’s ability to utilize information gained through a medical questionnaire is severely limited. In addition, such information must be maintained in a confidential medical file. Nevertheless, information gained during a post-offer/pre-employment medical questionnaire could be useful in the future. For instance, if an employee falsified information on the medical questionnaire and the employer subsequently discovered such falsification, disciplinary action could be possible. Discipline under such circumstances must be uniform and consistent. Finally, the falsification of information on such a questionnaire could be relevant in a subsequent workers’ compensation claim.
The foregoing is a general outline of the legal issues involved with pre-employment medical inquiries and/or examinations. Every municipal employer considering the use of medical questionnaires or examinations as part of its hiring process should carefully consider their options in this highly regulated area. Important information regarding the ability of an applicant to safely perform the duties of a job can be obtained and used to assist in the creation of a safe and healthy working environment for all employees. Nevertheless, collecting such information is not without risk to the municipal employer. The potential for allegations of discrimination, retaliation and violation of employee’s privacy rights must be balanced against the benefits which could be obtained from possessing such medical information on new employees.
Kevin Sturm is partner with the Spartanburg based firm of Sturm & Cont, P.A. and serves as SCMIRF’s lead Labor Hotline attorney.
1-Questions of the applicant are limited to his or her ability to perform job-related functions. The questions cannot be phrased in terms of a disability. The inquiry also must be narrowly tailored. An employer can ask about an applicant’s ability to perform both essential and marginal job functions. However, a refusal to hire should not be based on the lack of ability to perform marginal job functions. Based on these restrictions many employers shy away from making any pre-offer medical inquiries.
With the above-noted restrictions, employers normally limit their pre-offer medical inquiries to questions such as "Are you able to perform [listed job tasks] with or without an accommodation?" If such a question is asked, it must be asked of all applicants.
2-A drug test is not a "medical" test under the ADA.