Nexsen Pruet Employment Law Update - March 10, 2014: Should Employers "Get Physicial"?

by Nexsen Pruet, PLLC
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Many employers require that applicants pass a pre-employment medical exam to ensure they are physically capable of doing the job. Employers should be aware that pre-employment medical exams, while not categorically barred, could violate several federal statutes and draw unwanted attention from the Equal Employment Opportunity Commission (EEOC or the Commission).

GINA

Among the EEOC’s six national priorities,  which are detailed in  its  Strategic Enforcement Plan, is a commitment to addressing “emerging and developing issues” that include genetic discrimination. Passed in 2008, the Genetic Information Non-Discrimination Act (GINA) “prohibits discrimination on the basis of genetic information with respect to health insurance and employment.” Relevant here, GINA prohibits employers from requesting, requiring or purchasing genetic information about employees or applicants, and it bars employers from using genetic information in making hiring decisions. Two recent EEOC enforcement actions illustrate why employers should proceed with caution.

In EEOC v. Fabricut, Inc., the Commission charged that Fabricut, a worldwide distributor of decorative fabrics, violated GINA following a routine pre-employment physical. Specifically, the EEOC alleged that Fabricut’s contract medical provider asked for the applicant’s medical history prior to meeting with the physician, a request it said ultimately led to discriminatory conduct. The applicant likely thought nothing of this request as we routinely provide our medical history any time we visit a new provider. But this case was different, according to the EEOC, because the exam was done at the behest of a potential employer. Thus, the contract medical provider was acting as an agent of Fabricut, leaving Fabricut responsible for its decisions.

Eventually, Fabricut refused to hire the applicant because it concluded – based on the applicant’s medical history – that she may have had carpal tunnel syndrome. Although the applicant denied having the condition and an independent physician agreed, Fabricut nonetheless withdrew its conditional offer of employment. After the EEOC investigated  and filed suit, Fabricut was forced to settle the case for $50,000  and agree to post notices in its workplace stating that it would: 1) comply with all federal employment laws; 2) conduct live training for all human resources and management personnel; and 3) revise its anti-discrimination policies.

In EEOC v. Founders Pavilion, which was the Commission’s first class-action lawsuit under GINA, the Commission alleged that Founders Pavilion, a home health care facility, “requested family medical history as part of its post-offer, pre-employment medical exams of applicants.” Thus, the Commission pursued the employer for merely asking about prior medical history. Only 10 months after the EEOC filed its complaint, the parties settled the case for $370,000.

Additional Issues

A host of other federal statutes may come into play when an employer conducts a pre-employment physical.  For example, in the Fabricut case, the EEOC also alleged that Fabricut violated the Americans with Disabilities Act (ADA) when it withdrew the offer based on the possibility of carpal tunnel – even though the applicant was not actually disabled.  In the Founders case, the Commission claimed that the facility also refused to accommodate a disabled employee during a probationary period and fired two employees because Founders learned of potential disabilities during the employees’ yearly follow-up physicals.

Employment physicals may also run afoul of the Pregnancy Discrimination Act if an employer learns of a pregnancy and takes adverse action.  Employers who learn a prospective employee’s age in an employment physical cannot rescind an offer of employment based on age, as this would be deemed a violation of the Age Discrimination in Employment Act.  A physical exam may also lead to a violation of Title VII of the Civil Rights Act if an employer learns an applicant’s race, national origin or religion through the exam and takes an adverse action based on that knowledge.

Lessons Learned

As noted, pre-employment physicals are not categorically barred. However, several precautionarymeasures should be taken.

Employers should never conduct or require a pre-employment physical until a conditional offer of employment has been extended. They should also be able to tie the necessity of the physical to specific job duties.  For example, a potential SWAT team member may need 20/20  vision; a filing  specialist likely does not.   Additionally, employers should ensure that their contract medical provider is thoroughly familiar with the actual job for which they are conducting an examination.  Thus, medical providers should be provided a detailed job description for each applicant examined and, if possible, physicians should be brought to the worksite to see each of the job tasks for the applicants/employees they are examining.

Employers should also ensure that their medical providers are educated on GINA and the ADA. Under GINA, the provider should know that the employer cannot ask about past medical history or gather genetic information.  Recall that even though a doctor may normally ask for a medical history, in this scenario the doctor is acting as the employer’s agent, and under GINA the employer is not permitted to seek this same information.  Under the ADA, the provider should know that the employer has a duty to reasonably accommodate qualified individuals, and no one is in a better position to suggest an accommodation than the physician conducting the exam.

Moreover, employers should be aware that doctors tend to err on the side of caution and may recommend disqualifying an applicant based on a relatively minor physical disability. However, the ADA prohibits employers from preventing individuals with disabilities from working unless serious and specific harms are likely to occur.  Therefore, employers should not simply defer to their physician in the hopes of avoiding liability.

Finally, employers should consider a review board to oversee recommendations from their medical providers. If a candidate is disqualified by the physician, the employer should conduct follow-up questioning of the physician and potentially provide for an appeals process coupled with additional testing for the candidate.

Ultimately, the burden to avoid liability for conducting pre-employment or yearly physicals falls on the employer.  Consequently, employers are encouraged to analyze each employee’s job duties independently to determine whether a medical examination is absolutely necessary. If so, employers should regularly review their policies and take steps to ensure compliance.

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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