Medical Exams

April 13, 2006

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The purpose of asking job applicants to take a medical examination is to screen out those candidates who would not be able to properly perform their jobs for medical reasons. If you don't think there is going to be a serious need for this information (e.g., the job you're trying to fill is a desk job), it's probably not necessary, especially when you consider that if you choose to test people, you'll have to pay for it. Before you test, make sure that any information you may get is worth the expense.

The most obvious instance when this information would be useful is if the position requires a tremendous amount of physical activity and exertion.

If a person has a medical condition that would not prevent that person from doing the job, information about that condition is not relevant to you or your business. Asking for such information merely provides grounds for invasion of privacy suits and disability-based discrimination actions.

If you have 15 or more employees. You are subject to the Americans with Disabilities Act. As a rule, under the ADA medical tests may not be administered before a conditional job offer is extended. Should you decide to test, you have some issues to take into account.

First, you need to determine whether a test you're thinking of using is a "medical test."

The Equal Employment Opportunity Commission considers the following criteria in determining whether a test is "medical:"

Was the test administered by a health care professional or trainee?
Was the test given by the employer for the purpose of revealing an impairment or the state of an individual's physical or psychological health?
Was the test invasive (e.g., does it require the drawing of blood, urine, breath, etc.)?
Did the test measure physiological/psychological responses (as opposed to the performance of a task)?
Was the test normally done in a medical setting?
Were medical equipment/devices used for the test?

Tests the EEOC would generally consider not to be medical are:

physical agility/physical fitness tests that do not include medical monitoring
certain psychological tests such as tests that simply concern an individual's skills or tastes
tests for illegal use of drugs
polygraph tests, even though certain inquiries that are frequently made before or during the test would be prohibited pre-offer inquiries

If your test is considered a medical test, the following guidelines will guide you through the maze of requirements involved in medical examinations.

Do not require or request medical exams before you have extended a conditional job offer.
Do not ask for a medical history or make disability-related inquiries before a job offer is made.
Require all post-offer applicants in a job category to take the exam; don't just ask those individuals you believe may have a disability.
Disqualify only those applicants whose medical exams show that they cannot, as determined by a medical professional, perform the essential functions of the jobs that they are seeking or that they are a direct threat to health and safety, even after reasonable accommodation.
Treat all medical information as confidential. Remember that the medical information must be kept in separate file.
Do not base employment decisions on paternalistic views about what is best for a person with a disability.
Do not ask the doctors who conduct the medical examination to make employment decisions for you or to decide whether it is possible to make a reasonable accommodation for a person with a disability.
Be diligent in assuring that the examining doctors make assessments based on testing measures that actually and reliably predict the substantial, imminent degree of harm required. A mere statement by a company physician that a threat of harm exists by hiring a candidate with a particular disability will not shield you from liability.
Limit the doctor's role to advising you about a person's functional abilities and limitations in relation to the particular job functions.
Provide the doctors with specific information about the job the applicant seeks.
Have your medical advisers document the recommendations they make to you.

Medical records. If you do require medical tests and document them, be warned that medical records should not be kept with other documentation that might be kept in a personnel file. Separate files must be maintained for records relating to:

medical certifications
recertification
medical histories of employees or their family members

This information can be extremely sensitive and should be treated as confidential, except for limited circumstances involving work restrictions, necessity for emergency medical treatment, and compliance investigations.

Complete records of all medical examinations required by law must generally be retained for the duration of employment plus 30 years, according to the occupational safety laws. First aid records and records of employees employed less than one year are exempt from the above requirements.

If you do want to conduct medical tests and you are subject to the ADA, proceed carefully. The ADA and its requirements are specific and complex. Check with your legal advisor before requiring medical tests as part of the hiring process.