Can we conduct medical exams before we make offers to out-of-state applicants? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Can we conduct medical exams before we make offers to out-of-state applicants?

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Q. My company would like to institute a policy of conducting medical examinations on out-of-state applicants when workers interview here for jobs. This would reduce the number of trips an applicant would have to make before beginning employment with our company. The test results would be sealed (so the information cannot be relied upon in making job offers) and would be reviewed only if we offered, and the applicant accepted, a conditional offer of employment. Would such an arrangement violate the ADA?

A. Under the ADA, an employer may not ask “disability-related questions” or require a “medical examination” before extending a conditional job offer to an applicant. A disability-related question is defined as any inquiry likely to elicit information about a worker’s disability.

A medical examination is defined as a test or procedure designed to obtain information about a worker’s physical or mental impairment or health.

Note that under California law, employers may ask job applicants questions related to their ability to perform job-related functions. However, the law prohibits employers from requiring job applicants to undergo any medical or psychological tests, or from asking any medical, psychological or disability-related questions before making an offer of employment. Thus, medical history questions and medical exams are prohibited at the pre-offer stage.

The EEOC takes the position that a pre-employment inquiry or medical examination violates the ADA even if the employer obtains the applicant’s consent or establishes a mechanism so that the test results won’t be reviewed until the job has been offered to the applicant. According to the federal agency, the medical examination must not be conducted until after the conditional job offer is made.

Thus, your company’s proposed policy would probably run afoul of the ADA and state law. It could prove very costly.

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