Medical Examinations Under the ADA

Frequently, Employers want to ask disability-related questions or require existing employees or applicants to undergo a medical examination. Consideration of the Americans with Disabilities Act (“ADA”) should play a central role in any Employer making health or disability-related inquiries or requiring medical examinations. Failure to do so can be very costly. In June of 2018, the EEOC announced a $4.4 million settlement of a lawsuit it brought against an Employer who disqualified applicants for employment based on medical examinations.

Any question or series of questions that are likely to elicit information about a disability is a “disability-related inquiry”. For example, asking about a workers’ compensation history, what impairments a person has, or what medications are being taken would be covered. It is lawful to ask whether an applicant or employee can perform the essential functions of a job with or without accommodation, even if the person has an obvious disability, but best practices would dictate that such a question be asked of all applicants for a particular job, not only those with obvious disabilities. For example, stating that a job requires lifting 20 pounds overhead and asking an applicant if he or she can perform that function with or without accommodation does not violate the ADA. 

There are three points in the employment cycle and the ADA rules for requiring medical examinations differ at each stage. Prior to an offer of employment, Employers may not require any medical examination or make any type of medical inquiry directed at a discovering a disability. An Employer may make a “conditional” offer of employment; an offer subject to a medical examination before employment begins. After a conditional offer has been made, and before employment begins, Employers may ask disability-related questions. If an Employer desires to make a conditional offer, subject to a medical examination, it must require medical examinations of all applicants for the job category at issue. Employers do not need to require medical examination for all positions. For example, an Employer may require medical examinations for plant workers but not office staff.  Employers may not, however, require only a particular applicant to undergo a medical examination because it believes that a candidate has a disability or medical condition. At the ”conditional offer” stage of the employment cycle, the medical inquiry and examination need not be related to the job. After employment begins, an Employer may not ask disability-related questions and require medical examination unless both are job-related and consistent with business necessity. 

Any procedure or test that seeks information about an individual’s physical or mental impairments is a “medical examination” for ADA purposes. The EEOC considers the following factors to determine if a test is a medical examination: (1) whether the test is administered or interpreted by a health-care professional or given in a medical setting; (2) whether the test is designed to reveal an impairment or physical or mental health; (3) whether the test is invasive or uses medical equipment; (4)  whether the test measures performance of a task or physiological responses to performing a task. The following are not considered medical tests: (1) tests of physical fitness, strength or agility; (2) tests  that determine one’s ability to perform actual job functions; (3) psychological tests that measure traits such as honesty, preferences or habits; (4) polygraphs (however, the use of  polygraphs in the employment setting are illegal under many state laws).

After employment has begun, disability-related questions and medical examinations must be job-related and consistent with business necessity. That test generally will be met when an Employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform an essential function of the job will be impaired by a medical condition; (2) the employee will pose a direct threat due to a medical condition; or (3) following a request for reasonable accommodation where the disability, need or accommodation is not known or obvious. Employers also may require periodic medical examinations or monitoring under specific circumstances that are job-related, such as exposure to radioactive or toxic materials.  

The ADA does not say who must pay for medical examinations and there does not appear to be much case law to guide Employers. In one case arising in a federal court in California the court indicated that it would not violate the ADA for Employers to require all those to whom it offered conditional employment to pay for even expensive tests as part of a pre-employment medical examination, but that it would violate that Act for an Employer to require a prospective employee to pay for even an inexpensive test if the Employer required that test because the prospective employee had an actual or perceived disability. In the first situation, the Employer would be imposing a cost on prospective employees across-the-board without regard to an actual or perceived disability. In the latter case, the actual or perceived disability arguably drives the cost decision, and that violates the ADA.