Issue: Requiring a medical test before hiring an applicant is smart, but it carries legal risks.
Risk: A wrong step can trigger Americans with Disabilities Act (ADA) or privacy lawsuits.
Action: Follow the three guidelines below to make sure your exams are legally safe.
A recent court ruling yielded three practices you should follow when requiring medical exams for job candidates:
- Conduct the exam only after you've made a conditional job offer. The timing of medical exams is critical. After you've made a conditional job offer, but before the person starts work, you can require a medical exam to test his ability to perform stated tasks. Require the same exam for all candidates; don't single anyone out.
- Use an independent physician, not the company doctor, to remove any suspicion of collusion. Also, in most cases, the doctor should tell you only of any work-related restrictions placed on the employee, not the employee's medical condition.
- Give the doctor a written job description that clearly lists the job's essential functions. That allows the doctor to decide whether medical restrictions are necessary. Job descriptions are a sound investment that can shield your organization from ADA liability.
Recent case: After Todd Schuler applied at a Supervalu warehouse, the company said the job was his, as long as he passed an independent medical exam. During the exam, Schuler revealed that he was an epileptic. The doctor told Supervalu that Schuler was medically restricted from driving forklifts and working around dangerous equipment, but not that he was an epileptic.
The company told Schuler it couldn't hire him because of the work restrictions. He sued, citing ADA. A lower court threw out the case before it went to trial, and a federal appeals court agreed. Why? The doctor never revealed the reason for the medical restriction, so the court saw no evidence that the company knew about Schuler's disability.
In the end, the court said it was "reluctant to adopt a reading of the ADA that would impose liability on Supervalu every time it made a decision that an applicant was unfit for a particular job." (Schuler v. Supervalu Inc., No. 02-2586, 8th Cir., 2003)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- No matter how implausible, you must investigate every sexual harassment complaint
- Texas Unemployment Compensation Act
- If possible, have the manager who hired the employee also do the firing
- After the deluge: Hurricane Ike washes up an age bias lawsuit