Pre-employment Medical Exam Legal Issues Employers Need to Understand

Companies face legal challenges in all aspects of employment, starting before a new hire shows up for the first day of work. Often the first hurdle is the issue of a pre-employment medical examination.

Why Conduct Pre-Employment Exams?

With the cost of recruiting and training adding up to about 6-9 months of an employee’s salary, finding the best candidate for any position is important. The ability of a candidate to physically handle his or her job responsibilities depends on more than job skills or previous experience. It is important to note that pre-employment medical exams are different than fit for work or fitness for work testing and has different goals and limitations. (Learn more in "Uses of Pre-Employment Medical Exams and Differences From Fit-For-Work Testing".) Pre-employment exams deal more with underlying health risks than physical capacities of a specific job. Still, there are several benefits to conducting a pre-employment medical assessment:

• Previous injuries that could be applicable to Worker's Compensation issues can be identified (Learn more in "The Importance of Determining an Employee's Pre-Existing Injuries".)
• Screening can identify risks for injury and related insurance costs
• Candidates can be made aware of any previously undiagnosed conditions
• Compliance with state and federal laws strengthens defense against any potential litigation

When Exams Can be Required

It is first important to distinguish what medical information can be requested by an employer, pre-offer, offer, and post-offer with a candidate.

Pre-offer: This is the interview phase, with very strict laws regarding any questions that might result in hiring discrimination. Candidates can be given the job description and asked about their ability to perform the duties. They can also be asked to demonstrate job-related tasks, such as lifting, running, etc. An employer can never ask about medical conditions or possible disabilities.

Offer: According to the U.S. Equal Employment Opportunity Commission (EEOC), a legitimate job offer can be made only if all relevant non-medical information has been evaluated. The employer may use all information that can be “reasonably” collected during the interview. Extra time or expense is not necessary.

Post-offer: After a contingent job offer has been made, the employer can request or require a medical assessment. The company’s policies on such topics as medical examination requirements and drug testing should be provided to the candidate. The essential component is that every potential employee in the same job category be treated the same.

Who Should be Examined?

Who should be required to undergo a medical examination? The World Health Organization (WHO) recommends physical exams for these reasons:

1. Positions in a hazardous environment and those who will work in safety-sensitive positions
2. Jobs requiring a unique or high level of fitness
3. Safety of others (co-workers or community) is at risk
4. Requirement of state or federal law

For employers and government agencies that must demonstrate compliance with Department of Transportation (DOT) regulations, pre-employment physical examinations and drug screening are required. (Learn more in "8 Things Employers Should Know About DOT Drug and Alcohol Testing".) Potential candidates must demonstrate that they are able to work without endangering others.

Exams and the Law

Every physical assessment should be performed in the same manner, by a qualified physician or provider who is familiar with the job duties and working conditions; contracting with a specialized post-employment medical agency reduces legal liability. The physician or provider doing the exam should not be included in the hiring decision. All information obtained during the medical examination, including laboratory and drug screening results, is considered confidential and must be protected in compliance with the Health Insurance Portability and Accountability Act (HIPAA). (Learn more in "Guide to Understanding HIPAA as an Employer".) This includes secured health records kept by the physician or provider; results shared with the employer, and storing medical information separately from employment files.

The American Disability Act (ADA) has established guidelines and definitions for medical testing and assessment. A valid medical test is defined as:

• Administered by a healthcare professional
• Conducted in a medical setting
• Invasive, such as drawing blood
• Designed to discover a condition or impairment

In some cases, employers can use the pre-employment medical assessment to determine if a potential worker will be able to perform job duties with or without accommodation. However, there are limits to pre-employment exams and some job duty performance determinations would require fit for work testing or functional capacity testing. (Learn more in "When To Use A Functional Capacity Evaluation".) It’s important to note that the results of the screening may not be used to discriminate against anyone covered by the ADA, as well as speculation about the person’s possible future attendance record or use/abuse of the company’s benefit package.

A contingent job offer may legally be withdrawn for several reasons:

1. The potential employee is unable to do the essential physical tasks of the job, such as lifting, carrying, or moving objects. (Note that most pre-employment exams will not catch the majority of these issues and fit for work testing may be required. Learn more in "How to Set Up a Fit-for-Work Testing Program".)
2. Consistency with business necessity
3. Need to avoid the direct threat to health or safety

Under ADA guidelines, rescinding a job offer may also be allowed if the employer is unable to provide reasonable accommodations for a person with a disability. The employer must demonstrate that reasonable accommodation is not possible, or that providing the accommodation would cause undue hardship for the company.

To avoid other claims of discrimination by potential employees, companies should be aware of EEOC situations that may arise during a pre-employment medical examination:

• Pregnancy: Under the Pregnancy Discrimination Act of 1978 (Title VII of the Civil Rights Act of 1964) an employer may not rescind an offer due to pregnancy. The EEOC states, "An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of her job."

• Age: If a potential employee’s age becomes known during the medical assessment, the company cannot withdraw the offer. The Age Discrimination in Employment Act of 1967 applies to people age 40 and older.
• Protected categories: Under Title VII, any information about the potential candidate not known before the offer was made, including race, national origin, or religion, may not be used to withdraw an offer or make a hiring decision. On April 4, 2017, the Seventh Circuit Court of Appeals ruled that sexual orientation is included in Title VII.

Employers should also be knowledgeable about state laws regarding hiring; including drug screening legislation. Consult corporate and employment attorneys for guidance.