This article is part of our ongoing HR Scenario series by our National HR Client Service Manager, Kim Schaff, SHRM-SCP, PHR. In each of these articles, Kim will walk you through a real-life HR scenario and break down how this situation should be handled and all the ins and outs of the rules and regulations that impact the scenario.
For this week’s scenario, let’s say an employer is looking into doing pre-employment health screenings, and they want to know whether it is okay for them to test for certain conditions or not. The employer wants to conduct the following tests:
- Run medical tests to ascertain the applicant’s health—including conditions they are possibly unaware of.
- During the interview, the employer also wants to ask the applicant about: their work injury history, any affected body parts, or any existing conditions they are aware of. However, they are unsure if these questions could be considered discrimination.
This situation raises many questions. What’s legal vs. what is a job necessity vs. what may be best practice to minimize risk to the employer can vary in this situation. Consider the following questions.
Question #1: What are the relevant laws and regulations?
There could be both state and federal laws to consider. State antidiscrimination laws may also apply. Here are laws and regulations to consider in this scenario:
- Title I of the Americans with Disabilities Act (ADA) prohibits employers from discriminating against individuals with disabilities on the basis of their disabilities.
- Under the ADA, as amended by the ADA Amendments Act of 2008 (ADAAA) physical examinations can be required only if the following conditions are met:
- All other candidates in the job category are also required to have a physical examination.
- The candidate’s medical history is treated confidentially and is kept separate from other employment-related records.
- The results of the examination are not used to discriminate against persons covered by ADA.
- Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) makes it illegal for employers to discriminate against employees or applicants based on their genetic information.
- Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin.
Question #2: At what stage in the recruitment process can the employer ask applicants to take a pre-employment physical?
At the pre-offer stage, an employer cannot require examinations that seek information about physical or mental impairments or health. However, employers may ask about the applicant’s ability to perform specific job functions.
For example: The employer may state the physical requirements of a job and ask if the applicant can lift a certain amount of weight.
The employer can also ask an applicant to describe or demonstrate how they would perform specific job functions prior to an offer being extended. The employer can also require applicants to take physical agility or physical fitness tests at the pre-offer stage to demonstrate an ability to perform job functions because these are not considered medical examinations.
An actual pre-employment physical (medical examination) can only be conducted after a conditional offer of employment has been made. It is important to note that at the offer stage, all non-medical components of the hiring process should be complete.
Question #3: What can the employer test for in a pre-employment physical/medical examination conducted following a conditional offer of employment?
A physical exam should assess whether the person is currently able to perform the duties of a job with or without accommodation. To make this assessment, the medical practitioner who conducts the examination must have a clear understanding of the job duties and conditions.
Only job-related physical attributes or conditions should be examined.
Question #4: Can the employer ask disability-related questions at the post-offer stage?
After giving a job offer to an applicant, an employer may ask disability-related questions, and may ask individuals whether they need reasonable accommodation to perform the job. The employer may also request reasonable documentation of the individual’s entitlement to reasonable accommodation, showing that the individual has a covered disability and stating his/her functional limitations.
Question #5: Can the employer ask about an applicant’s workers’ compensation history at the post-offer stage?
The Equal Employment Opportunity Commission (EEOC) says an employer may ask about an individual’s workers’ compensation history at the post-offer stage. A reason an employer would request a workers’ compensation screening would be to determine if the applicant has misrepresented their workers’ compensation history or medical condition.
Previous workers’ compensation claims alone are not grounds for rejecting a candidate and this type of screening is only permitted when job-related. Employers may not base an employment decision on the speculation that an applicant may cause increased workers’ compensation costs in the future.
Before attempting to screen workers’ compensation claims as part of the post-offer hiring process, employers should understand the risk and legal concerns associated, and heavily weigh those risks and legal concerns with legal counsel.
Question #6: Can the employer ask about family medical history?
Under the GINA, family medical history is “genetic information,” which you are not allowed to obtain—directly or indirectly. There are a few exceptions, but this is the general rule.
What that means is that you could send an offeree or employee for a medical examination that fully complies with ADA requirements, but if the doctor asks about family history (even if you don’t know that the doctor is doing so), your company could be liable for a GINA violation. The employer should provide “safe harbor” language to the health care provider in order to be protected.
Question #7: May medical information be given to decision-makers involved in the hiring process?
Yes. Medical information may be given to, and used by, decision makers so they can make employment decisions consistent with the ADA. In addition, the employer may use the information to determine reasonable accommodations for the individual.
However, only those with a “need to know” should be given access and medical information should be stored confidentially, separate from other employment-related records.
Question #8: What if the employer wants to withdraw a conditional offer of employment based on the results of a physical examination?
Contingent offers of employment may be withdrawn based on the results of a physical examination if the reason for withdrawing the offer is job-related, consistent with business necessity, or imperative to avoid a direct threat to health or safety.
Contingent offers may also be withdrawn if:
- There is no reasonable accommodation that the employer could make to allow the person to perform the job.
- Providing the needed accommodation would cause undue hardship.
Offers of employment cannot be legally withdrawn because of speculation about a person’s future attendance or use of benefits. Additionally, state laws may also apply.
For example: Some regulations state that any individual who would be disqualified by the results of a medical must be given a meaningful opportunity to contest the accuracy of the information before a final decision is made.
If the employer decides to withdraw a conditional offer of employment, they should provide the candidate with written notice of the adverse action, stating the reason the offer is being withdrawn and noting that this same reason was a contingency of the job offer.
Question #9: Who pays for the cost of the examination?
Generally, an employer can require an offeree to pay for a pre-employment physical and the employer can normally deduct unreimbursed employment expenses on their personal income taxes. Though, once an individual is an employee, the employer must pay for the expense of any examinations.
However, it is generally considered best practice that if an employer requires the applicant to go to a health care professional of the employer’s choice, the employer should pay all costs associated with the visit. Also, some state laws require the employer to bear the cost and/or provide a copy of the results to the employee.
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.
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 and/or 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.
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 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.