Pre-employment physicals under the ADA - Americans with Disabilities Act - Legal Trends

HR Magazine, Oct, 1992 by Jonathan A. Segal

The Americans with Disabilities Act (ADA), which went into effect this summer for employers with 25 employees or more, will change forever the way businesses operate. Nowhere is this more true than in connection with pre-employment physical examinations.

Who may be tested?

Under the ADA, pre-employment physical examinations may not be conducted of an applicant until after a conditional offer of employment has been extended to the applicant. Consequently, only applicants who are otherwise qualified for employment may be subject to a pre-employment physical examination.

To ensure that an applicant who is denied employment cannot credibly claim that the pre-employment physical was required for employment before a conditional offer was extended, it is generally recommended that the conditional offer be in writing. Care must be taken, however, not to make the conditions stated in the offer letter too narrow. For example, if hiring the applicant is contingent on other conditions, such as passing a pre-employment drug screen, those conditions also should be set forth in the conditional offer letter.

Care also must be taken not to make any implied promises of other than at-will employment. In most cases, the offer letter should specifically state that the employment will be at-will.

While it is not necessary that every applicant for employment be subject to a pre-employment physical examination, consistency is required for each position. Every applicant for a particular position must be subject to the same pre-employment physical examination.

Scope of the examination.

The EEOC's Technical Assistance Manual on the ADA provides that, after making a conditional offer of employment, but before the applicant actually commences active employment, an employer may make unrestricted medical inquiries, but may not refuse to hire an applicant with a disability based on the results of such inquiries, unless the reason for the rejection is "job-related and justified by business necessity."

However, because courts, commissions and employees assume that employers intend to use the information which they elicit, non-job-related information is dangerous when in an employer's possession. Indeed, this is information that an employer has a need "not to know." Consequently, it is generally recommended that employers limit their inquiries to those physical or mental conditions that relate to an applicant's ability to perform the "essential functions" of the job for which he or she has applied. The question then becomes, when is a function "essential."

The regulations provide that a job function may be considered essential for several reasons including: (1) the position exists to perform that function or (2) there are a limited number of employees available among whom the performance of that function can be distributed.

Among the factors relevant in determining whether a particular function is essential are: (1) the employer's judgment as to which functions are essential, (2) written job descriptions prepared before advertising or interviewing applicants for the job, (3) the amount of time spent on the job performing the function, (4) the consequences of not requiring the incumbent to perform the function, (5) the terms of any applicable collective-bargaining agreement, (6) the work experience of past incumbents in the position, and (7) the current work experience of incumbents in similar positions. Each factor may be relevant; none, overriding.

In this context, it is important to note that the EEOC's Technical Assistance Manual includes language suggesting that employers may engage in pre-employment physical examinations which are broader than indicated above. More specifically, the Technical Assistance Manual provides that the pre-employment physical examination need not be job-related. However, the manual goes further to provide that an employer may reject an applicant in connection with a pre-employment physical examination only because of job-related reasons.

Because employees, courts and commissions assume that employers intend to use the information which they elicit, as a practical matter, employers should elicit information only with regard to job-related conditions. Any other information is dangerous when in the employer's possession.

Selecting a physician

Ideally, a physician who is independent of the organization should conduct the examination. With independence comes credibility. If the company has a physician on staff, it is critical that there be an impenetrable wall between the personnel and medical functions--particularly with regard to confidentiality, discussed later.

Whether the examining physician is employed by or independent of the organization, it is recommended that he or she provide input in determining the essential functions of the job. This may involve witnessing existing employees perform the job through simulations and/or videos. Consultations with industry experts are also recommended.

How it works.

For each position, the examining physician should be given a written statement as to the essential mental and physical functions of the job. The physician then will conduct an examination of the applicant to determine whether he or she can perform those functions.