Navigating the ADAs Rules on Physical Examinations in the Workplace By Nick Birkenhauer, DBL Law The circumstances under which an employer can require an employee to undergo a physical examination is an issue HR professionals are frequently confronted with. Broadly speaking, there are two types of physical examinations in the employment context: pre-employment exams and post-employment exams. The rules governing these examinations are stringent, and deserve an employers careful attention. Pre-Employment Testing Pre-employment physical examinations are regulated by the Americans with Disabilities Act (ADA). Under the ADA, an employer may require a pre-employment physical examination only after a contingent offer of employment has been made to the prospective employee (i.e., the applicant is offered the job contingent on the applicant passing the physical examination). Under no circumstances can a physical examination be required before a contingent offer of employment is made. Furthermore, even if the employer makes a contingent offer of employment to the prospective employee, a physical examination can only be required if the following conditions are met: • All other candidates in the same job category also are required to undergo a physical examination (i.e., you cannot single out an applicant for testing); • The candidates medical history is treated confidentially and is kept separate from other employment-related records; and • The results of the examination are not used to discriminate against persons covered by the ADA. Finally, a pre-employment physical examination should assess whether a prospective employee is currently able to perform the essential duties of the job, with or without accommodation. In order to make this assessment, the medical practitioner who conducts the examination must have a clear understanding of the job and its essential functions. Therefore, the best practice is to provide the medical practitioner with a written job description of the position prior to the examination. Only job-related physical attributes or conditions should be examined. What happens if the examination shows that the employee cannot perform the essential functions of the job? Contingent offers of employment may be withdrawn based on the results of a physical examination only if the employer can make one of the following showings: • There is no reasonable accommodation the employer could offer which would allow the candidate to satisfactorily perform the job (i.e., the candidate could not perform the essential functions of the job with or without accommodation); or • Providing the needed accommodation would cause the employer to experience an undue hardship; or • Withdrawing the contingent offer of employment is necessary to avoid a direct threat to workplace health or safety. The EEOC will closely scrutinize any case where a contingent offer of employment is withdrawn based on the results of a physical examination. For this reason, employers must be diligent in ensuring compliance with the foregoing requirements. Post-Employment Testing For existing employees, the rules for post-employment physical examinations (often referred to as fitness-for-duty examinations) are somewhat different. Whether an employer can require a fitness-for-duty exam depends on the employees condition and the essential functions of the employees job. Generally speaking, a fitness-for-duty exam is a medical examination of a current employee to determine whether the employee is physically or psychologically able to perform the essential functions of the job. Oftentimes, fitness-for-duty exams are required when an employee is ready to return to work after taking time off for a serious illness or injury, such as FMLA leave. For example, a warehouse worker with a back injury might have to take a fitness-for-duty exam before returning to work to ensure he or she is capable of meeting the physical requirements of the job (e.g., lifting, pulling, etc.). A fitness-for-duty exam might also be required when an employees on-the-job conduct gives the employer reason to believe that the employee is not able to perform the job safely. For example, if a forklift operator is found unconscious at the controls, the employer could require the employee to be examined to ensure that the employee doesnt pose a serious safety risk. In any case, in order to comply with the requirements of the ADA, an employer can require a fitness-for-duty exam only if the exam is job-related and consistent with business necessity. This standard will generally be met if the employer has a reasonable belief that the employees condition may prevent the employee from performing the jobs essential functions, or the employee poses a direct threat to his or her own safety or the safety of others.
Posted on: Tue, 11 Nov 2014 23:00:00 +0000
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