Preventing On-the-Job Injuries: ADA, GINA and Post-Offer Medical Inquiries

April 2, 2010

Most employers are aware that the Americans with Disabilities Act (ADA) limits their ability to question job applicants about the existence, nature or severity of potential medical conditions and disabilities prior to extending a conditional offer of employment. This essentially prohibits questions beyond an applicant’s general ability to perform the job functions of a position. Many employers also know that overstepping these limits can open the door to an ADA failure-to-hire claim.

Given these concerns, many employers simply ask applicants if they can perform the job duties for which they are applying, take the response at face value, and move along with the hiring process. While such an approach may be effective in limiting failure-to-hire claims, it can result in the hiring of an employee who is medically unqualified for a position. Such action also potentially places the employee’s and his or her coworkers’ safety at risk and increases the employer’s exposure to potential workers’ compensation claims.

Post-Conditional Offer Medical Inquiries and Exams

Despite these issues, the ADA includes a provision that allows employers to objectively measure an applicant’s fitness for duty after a conditional offer of employment has been made. Specifically, once an employer extends an offer of employment – but before the employee begins work – the ADA permits a wide range of medical inquiries and exams that can identify pre-existing medical conditions and on-the-job injuries, and confirm the employee’s ability to perform the essential functions of the offered job.

Securing this information verifies that the applicant can meet the job’s essential physical and mental qualifications, thereby screening out medically unqualified applicants. As such, implementing post-offer medical inquiries or exams can be a valuable tool for employers, particularly those whose workforce includes physically demanding jobs. Additionally, employers that have already implemented such post-conditional offer programs should periodically review them for compliance with the current state of the law, including the ADA and the Genetic Information Nondiscrimination Act (GINA).

Inquiry and Exam Limits

  1. An employer can only subject applicants to a medical inquiry or exam once a “real” conditional offer of employment has been made. The Equal Employment Opportunity Commission (EEOC) and numerous courts (including the U.S. Court of Appeals for the 5th, 7th and 9th Circuits) have concluded that a real offer of employment only exists where the employer has weighed all non-medical information that it reasonably could have obtained and analyzed prior to making the offer. In other words, the employee must have already cleared all reasonable non-medical prerequisites to employment (e.g., drug screen, background check and reference check), with the only remaining obstacle to hire being passage of the medical inquiry or exam.
  2. The ADA requires that if an employer uses a post-conditional offer inquiry or exam, it must be administered to all incoming employees in the same job category regardless of disability. Thus, employers may only require offerees to undergo a medical inquiry or exam if the employer has a policy requiring all offerees for that position to undergo the same procedures.
  3. Employers must keep the results of the medical inquiries and exams confidential. Such information must be maintained in a file separate and apart from the offeree’s other personnel records, and only shared with supervisors and managers as necessary to accommodate any restrictions or as otherwise allowed pursuant to the ADA. Creating this information barrier can effectively limit an employee’s ability to allege that a supervisor used information revealed in a medical inquiry or exam as a basis for discriminating against him or her because of the employee’s disability (or claiming that the supervisor “regarded” the employee as disabled).
  4. While the extent of post-conditional offer medical inquiries and exams may be broad, if an employer disqualifies an applicant due to the results of such actions, the employer must be prepared to demonstrate that: (a) the particular medical disqualification is job-related and consistent with business necessity; and (b) the medical condition cannot reasonably be accommodated to a point where the employee can perform the essential functions of the offered position and/or conduct such work in a manner that does not present a direct threat of immediate harm to the employee or others. This is a high standard. In this same vein, employers should be wary of collecting information unrelated to the employee’s ability to perform his or her job functions, as that information may become evidence against the employer in an ADA lawsuit down the road.
  5. Although employers may ask a job candidate a wide range of medical questions post-conditional offer ranging from inquiries about the offeree’s history of on-the-job injuries to whether the offeree suffers from depression, employers must be cognizant of the additional limits imposed by GINA. For example, GINA prohibits inquiries that reveal an applicant’s family medical history. As such, questions about whether an offeree’s relatives have a history of particular conditions, as well as most medical exams that include genetic testing, are not allowed under GINA.

Despite the above requirements, post-offer medical inquiries and exams can be a useful tool for preserving employee safety as well as preventing unnecessary and fraudulent claims, provided employers administer such procedures in the proper manner.

For further advice regarding compliance with the ADA or GINA, please contact the author or any member of the McGuireWoods Labor & Employment and Employee Benefits teams.