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

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.

Upon completing the examination, the physician will tell the company only whether the applicant is capable of performing those functions, responding with a simple affirmative or negative. Under no circumstances should the entire medical record acquired by the physician be disclosed to the company.

If the answer to the narrow inquiry is "yes," the applicant will be hired. If the answer is "no," then the company must consider--with additional input from the physician--whether it can make any reasonable accommodations on the applicant's behalf to overcome the disabling conditions. The ADA defines a qualified person with disabilities as someone who can perform the essential functions of the job, with or without reasonable accommodations. The burden is on the company to make such accommodations.

Reasonable accommodations.

The regulations provide a number of examples that may, under certain circumstances, constitute reasonable accommodations. They include (1) job restructuring; (2) part-time and/or modified work schedules; (3) reassignment to a vacant position; (4) acquisition or modification of equipment, devices; (5) appropriate adjustment or modification of examinations, training, materials or policies; and (6) the provision of qualified readers or interpreters.

Assume, for example, that one of the requirements of a job is that an applicant be able, among other tasks, to lift 70 pounds. Assume further that, because of a degenerative disease in her spine, the applicant can lift only 60 pounds.

The physician would not disclose to the company the nature of the debilitating disease. Rather, she should indicate only the essential function that the applicant cannot perform, which is lifting 70 pounds. She would further indicate what the applicant could lift--for instance, 60 pounds.

The company then would determine whether it could restructure the position for which the applicant has applied to require that she lift no more than 60 pounds. This would depend, in part, on how often the job requires the lifting of 70 pounds or more and the availability of other employees to perform this function.

Although the employer should elicit and consider input from the examining physician, ultimately the determination as to whether an accommodation is reasonable must be made by the employer. In making this determination, suggestions offered by the applicant should be considered as well.

To the extent the applicant offers to assist in the accommodation process, the applicant's position is strengthened, should litigation ensue. Conversely, however, an employer need not make the applicant's preferred accommodation. The employer needs to make only a reasonable accommodation.

Confidentiality.

As noted above, the examining physician generally should not release to the employer any medical information that he or she acquires about the applicant. Whatever information the employer does receive from the examining physician should be placed in confidential medical files, which are separate and distinct from the employees' personnel files. (All medical information, whether it is acquired through the pre-employment physical examination or by other means, should be placed in these files.)

Whoever is designated as the custodian of medical records may disclose such confidential information under three narrow circumstances, as stated in the regulations.

First, the information may be disclosed to "supervisors and managers regarding necessary restrictions on the work or duties of an employee or necessary accommodations." In these circumstances, in most cases, there will be no need for the custodian of records to disclose the nature of the underlying condition. Instead, he or she should indicate only the necessary restrictions and/or appropriate accommodations.

Second, the information may be disclosed to "first aid and safety personnel where the disability might require emergency treatment." Here, the first aid and safety personnel may need to know, in some cases, the nature of the employee's disability in order to provide the appropriate treatment.

Third, the regulations provide that medical information may be disclosed to governmental officials investigating the employer's compliance with the ADA.

There are two additional circumstances in which disclosure may be permitted, although not specifically addressed in the regulations.

First, disclosure may be made where otherwise required or permitted by law. If a court were to order disclosure, for example, the employer would have to comply with the court order. Similarly, the EEOC's Interpretive Guidelines make clear that medical information may be disclosed in connection with an employee's workers' compensation claim.

Second, employers should be able to disclose medical information with the prospective or existing employee's written consent. If there is any doubt as to whether a disclosure is otherwise permissible, consent should be secured. A separate consent form also should be developed for the applicant to sign before having the physical examination.

Challenges.

The ADA does not set forth a specific procedure that must be followed if an applicant wishes to challenge the conclusion of the company's designated physician that he or she is not qualified for employment. The procedure set forth under family leave laws in many states provides instructive guidance.

It is generally recommended that, if an applicant disagrees with the conclusion that he or she is not fit for duty, the applicant should be permitted to obtain a second opinion. If the second physician, whom the employee designates, agrees with the company's physician, then the matter is closed. If, however, there is disagreement, then there should be a third opinion.

The third opinion should be from a physician who is jointly selected by both the employer and the applicant. Ideally, the physician should not have ties to either the employer or the applicant to maximize his or her actual and perceived credibility. The judgment of this third physician usually should be binding on both the employer and the applicant.

The applicant should pay the cost of the second opinion; the company, the third. However, if the third physician agrees with the applicant's physician, then fairness dictates that the applicant be reimbursed for the cost of the second examination.

Conclusion

Unlike many employment laws, the ADA makes business sense. It forces employers to focus not on disabilities but on job functions. In so doing, the ADA will prevent employers from obtaining information that they have a need not-to-know, information that can only be dangerous when in their possession.

Author's Note: Because the law in this area is still in its nascent stage, there is some ambiguity as to what it requires. Consequently, this article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., is a management attorney with the Philadelphia law firm of Wolf, Block, Schorr and Solis-Cohen. His practice concentrates on the training of supervisors and the development and implementation of employee-relations systems designed to avoid litigation, unionization and employee attrition.

COPYRIGHT 1992 Society for Human Resource Management
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