Employers: Be Vigilant About ADA Compliance During the Hiring Process

While certain job duties may legitimately require that employers screen applicants and employees for medical conditions, organizations risk violating the Americans with Disabilities Act (ADA) and incurring serious legal consequences if they do not follow ADA guidelines and regulations during the hiring process.

Under the ADA, employers are not allowed to ask any medical-related questions or conduct medical examinations during the interview process. This helps ensure that employers consider only applicants' non-medical qualifications in connection with their ability to perform certain job functions. After a decision has been made to hire an applicant, however, employers may ask for any medical information, provided the same information is requested of any person offered a position in the same job category. Such questions do not have to be tailored to the particular job. Employers may also request more than one examination if more information is needed.

Once an employer obtains such medical information, it must be kept confidential and the employer may not withdraw the job offer or otherwise prevent the individual from accepting the job. Employers may not use medical information or exam results to reject an applicant; such an assumption would violate the ADA's prohibition of disability discrimination.

Rather, the ADA requires that employers perform an "individualized assessment" to determine if the applicant would be able to perform the essential functions of the job either in spite of the disability, or with the disability, if a reasonable accommodation is provided. Deciding not to hire an individual because of a disability must be backed up with proof that the decision was made for reasons that are job-related and consistent with business necessity.

Disregarding ADA requirements can lead to significant liability. For example, the U.S. Equal Employment Opportunity Commission (EEOC) recently won a motion for summary judgment against an employer who revoked an applicant's job offer after a medical exam revealed that the applicant had undergone back surgery six years prior. Assuming he was disabled, the employer asserted that because the applicant was unable to provide a medical release related to the surgery, he was unfit for the job. The employer asserted it was acting responsibly in attempting to provide a safe working environment by obtaining independent medical advice to determine whether applicants are fit for duty.

While the court agreed that the ADA permits conditional offers of employment pending the results of medical examinations, it stressed that examination results may only be used in accordance with ADA guidelines. Here, the employer was not able to show that requiring a medical release was "job-related" or consistent with "business necessity" as required by the law. Furthermore, without conducting any sort of individualized assessment, the employer was merely relying on "myths and fears" to presume the applicant's previous back surgery would expose it to liability. As a result, the court found the employer's actions constituted unlawful discrimination in violation of the law.

The ADA's requirements governing medical screening of applicants are highly specific. EEOC investigations closely review the reasons behind an employer’s decision to reject an applicant or employee due to a disability. In the face of such scrutiny, employers must ensure they have solid proof that any employment decisions stemming from medical questions or exams are "job-related and consistent with business necessity." Employers who ignore any or all of the ADA guidelines cannot simply rely on a doctor's recommendations regarding an individual's ability to perform a job to shield them from liability.

It is far more cost-effective to comply with the ADA and federal regulations for medical examination and screening procedures than to respond to violations after they occur.

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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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