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VI. MEDICAL EXAMINATIONS AND INQUIRIES

6.1 Overview of Legal Obligations

Pre-Employment, Pre-Offer

• An employer may not require a job applicant to take a medical examination, to respond to medical inquiries or to provide information about workers' compensation claims before the employer makes a job offer.

Pre-Employment, Post-Offer

• An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be "job-related" and "consistent with business necessity." Questions also may be asked about previous injuries and workers' compensation claims.
• If an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and necessary for the business. The employer also must show that no reasonable accommodation was available that would enable this individual to perform the essential job functions, or that accommodation would impose an undue hardship.
• A post-offer medical examination may disqualify an individual who would pose a "direct threat" to health or safety. Such a disqualification is job-related and consistent with business necessity.
• A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.

Employee Medical Examinations and Inquiries

• After a person starts work, a medical examination or inquiry of an employee must be job related and necessary for the business.
• Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current "fitness" to perform a particular job and voluntary examinations that are part of employee health programs.

Confidentiality

Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions specified in the ADA. (See 6.5 below.)

Drug Testing

• Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions on such examinations. (See Chapter VIII.)

6.2 Basic Requirements

The ADA does not prevent employers from obtaining medical and related information necessary to evaluate the ability of applicants and employees to perform essential job functions, or to promote health and safety on the job. However, to protect individuals with disabilities from actions based on such information that are not job-related and consistent with business necessity, including protection of health and safety, the ADA imposes specific and differing obligations on the employer at three stages of the employment process:

1. Before making a job offer, an employer may not make any medical inquiry or conduct any medical examination.

2. After making a conditional job offer, before a person starts work, an employer may make unrestricted medical inquiries, but may not refuse to hire an individual with a disability based on results of such inquiries, unless the reason for rejection is job-related and justified by business necessity.

3. After employment, any medical examination or inquiry required of an employee must be job-related and justified by business necessity. Exceptions are voluntary examinations conducted as part of employee health programs and examinations required by other federal laws.

Under the ADA, "medical" documentation concerning the qualifications of an individual with a disability, or whether this individual constitutes a "direct threat" to health and safety, does not mean only information from medical doctors. It may be necessary to obtain information from other sources, such as rehabilitation experts, occupational or physical therapists, psychologists, and others knowledgeable about the individual and the disability concerned. It also may be more relevant to look at the individual's previous work history in making such determinations than to rely on an examination or tests by a physician.

The basic requirements regarding actions based on medical information and inquiries have been set out in Chapter IV. As emphasized there, such actions taken because of a disability must be job-related and consistent with business necessity. When an individual is rejected as a "direct threat" to health and safety:

• the employer must be prepared to show a significant current risk of substantial harm (not a speculative or remote risk);
• the specific risk must be identified;
• the risk must be documented by objective medical or other factual evidence regarding the particular individual;
• even if a genuine significant risk of substantial harm exists, the employer must consider whether it can be eliminated or reduced below the level of a "direct threat" by reasonable accommodation.

This chapter discusses in more detail the content and manner of medical examinations and inquiries that may be made, and the documentation that may be required (1) before employment and (2) after employment.

To read more you can go to http://askjan.org/links/ADAtam1.html#VI