TIMING MATTERS: Why an Employee Medical Exam is the Last Step in the Hiring Process


EmpBlog-4.8.2014-Medical Exam-iStock-PAID-RESIZEDYou craft and post a job description that is poetry. It generates a flurry of applications. You are so popular that you have your pick of potentially qualified employees for the position. You sift through the applications and resumes, you whittle down the list of top candidates, you conduct the interviews, you conduct the medical exams, you conduct the drug test, you conduct the background check and you end up hiring the best person for the job. Great result, right?

Well, not so fast. The rejected candidates could say that there is something about your hiring process that makes it unlawful. Specifically, the timing and order of your hiring process.

In the rush to recruit and hire the best person to fill a position, most employers do not realize that both federal and California disability regulations actually prohibit medical exams or medical information requests from employees until the employer has made a “real” or “bona fide” job offer. This means that the employee has already completed all non-medical components of its application process. The Equal Employment Opportunity Commission’s Americans with Disabilities Act Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations expressly states that “[a] job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.” This requirement has been upheld by the Ninth Circuit Court (the federal court that presides over California). In Leonel v. American Airlines Inc., 400 F.3d 702 (9th Cir. 2005), the court chastised an employer for making applicants participate in on-sight medical exams for the position before the employer had completed the non-medical inquiries that were part of the application process. Specifically, the employer had not yet received the applicants’ background checks.

What does this mean to employers? Determine whether a medical exam is actually necessary for the position being filled. If it is, make sure this is the very last in the pre-hire process. Oh, and don’t forget to train your hiring managers to observe this timing.

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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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