7 Tips to Avoid ADA Violations in Pre-Employment Medical Exams

Even when an applicant’s disability appears directly related to job performance, employers may not reject the applicant based on that condition. Employers who do may be subject to significant fines and other legal consequences for failing to comply with the Americans with Disabilities Act (ADA).

The ADA states that employers may not exclude applicants with disabilities before their aptitude to perform the job is evaluated. Consequently, an employer may not ask disability-related questions or conduct medical examinations until after it makes a conditional job offer to the applicant. Any such questions or medical examinations must also be required of any person offered a position in the same job category.

Employers may not reject an applicant based on a disability — real or perceived — that is discovered during an examination or inquiry without an acceptable reason under the ADA. Thus, an employer who withdraws a job offer based on the answers to medical questions or the results of an examination faces potential ADA scrutiny and liability unless it can prove the rejection is "job-related and consistent with business necessity."

Employers may reject a candidate if —

  1. Solid, objective medical results indicate an applicant would be unable to perform the essential functions of the job without a significant risk to the health or safety of the applicant and others in the workplace;
  2. No reasonable accommodation is available to enable the applicant to perform essential job functions without a significant risk to health or safety; and/or
  3. Such accommodation would create undue hardship on the employer.

Employers face strict requirements in establishing that an applicant would present a "direct threat" to health or safety. Decisions must be based on sound, current and authoritative medical information and show a high probability of significant harm if the person is employed. Furthermore, an applicant cannot be disqualified because of unsubstantiated assumptions about their ability to perform essential job functions, or speculation about a future risk of injury or compensation claim.

To reduce potential liability, employers should —

  • Carefully consider which job positions require medical information or testing;
  • Avoid making assumptions or comments about an applicant's medical condition which could potentially cause the applicant to believe decisions were made on the basis of the person's real or perceived disabilities, even if that is not the case;
  • Apply policies in a uniform manner;
  • Focus on qualifications for the job, not on perceptions about someone’s disability or need for accommodation;
  • Ensure physicians are thoroughly familiar with the jobs for which they are examining applicants by providing them with a detailed job description for each applicant examined;
  • Designate a management-level employee to review all negative hiring recommendations made by a doctor. This includes questioning the physician about the specific testing conducted, the basis for the recommendation and the likelihood and severity of any injury to the candidate if he is employed. If necessary, seek a second or more specialized opinion; and
  • Ensure all relevant employees are properly trained on ADA requirements and employer policies and procedures.

Employers cannot simply rely on a doctor's recommendations — even in good faith — to protect them from ADA liability when making negative hiring decisions. Rather, organizations must implement sound and effective policies and procedures and employee training programs to ensure ADA compliance.

 

Topics:  ADA, Disability, Disability Discrimination, Discrimination, Employer Liability Issues

Published In: Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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