EMPLOYMENT BACKGROUND CHECKS
Pre Employment Medical Examinations
In the past, some employment applications and interviews requested information about an applicant’s physical and/or mental condition.
This information was often used to exclude applicants with disabilities before their ability to perform the job was even evaluated.
For example, applicants may have been asked about their medical conditions at the same time that they were engaging in other parts of the application process, such as completing a written job application or having references checked.
If an applicant was then rejected, s/he did not necessarily know whether s/he was rejected because of disability, or because of insufficient skills or experience or a bad report from a reference.
As a result, Congress established a process within the ADA to isolate an employer’s consideration of an applicant’s non-medical qualifications from any consideration of the applicant’s medical condition.
The Statutory and Regulatory Framework Under the law, an employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant.
Q. Are Pre employment Medical Examinations Permitted Under the Americans with Disabilities Act of 1990 (the “ADA”)
An employer may 1 ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer. This Enforcement Guidance explains these ADA provisions.2
Under the Americans with Disabilities Act of 1990 (the “ADA”), an employer may
1. Ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer.
This Enforcement Guidance explains these ADA provisions.
2. ADA Enforcement Guidance: Pre employment Disability-Related Questions and Medical Examinations Introduction Under the Americans with Disabilities Act of 1990 (the “ADA”), an employer may:
1. Ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer.
This Enforcement Guidance explains these ADA provisions.
This helps ensure that an applicant’s possible hidden disability
3 (including a prior history of a disability) is not considered before the employer evaluates an applicant’s non-medical qualifications. An employer may not ask disability-related questions or require a medical examination, even if the employer intends to shield itself from the answers to the questions or the results of the examination until the post-offer stage.
Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including the following:
Employers may ask about an applicant’s ability to perform specific job functions. For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements.
Employers may ask about an applicant’s non-medical qualifications and skills, such as the applicant’s education, work history, and required certifications and licenses.
Employers may ask applicants to describe or demonstrate how they would perform job tasks.
Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category.
If the employer rejects the applicant after a disability-related question or medical examination, investigators will closely scrutinize whether the rejection was based on the results of that question or examination.
If the question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is “job-related and consistent with business necessity.”
The following article documents a lawsuit arising from a Pennsylvania nursing home’s requirement that applicants undergo a physical medical examination before being considered for hiring. Click Here
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None of the information contained in this web site should be construed as legal advice. All forms, policies, information and procedures should be reviewed by your legal counsel before being used in any way.