Will sealing medical examinations shield us from ADA liability? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Will sealing medical examinations shield us from ADA liability?

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Q. To accommodate out-of-state applicants, we want to conduct medical exams when workers interview on-site for jobs. The test results would be sealed and would be reviewed only if an applicant were offered and accepted a conditional offer of employment. This would reduce the number of trips an applicant would have to make before starting work. Would such an arrangement violate the ADA?

A. Under the ADA, an employer may not ask “disability-related questions” or require a “medical examination” prior to extending a conditional job offer to an applicant.

Disability-related question is defined as any inquiry that is likely to elicit information about a worker’s disability. Thus, medical history questions are prohibited at the pre-offer stage.

Medical examination is defined as a test or procedure designed to obtain information about a worker’s physical or mental impairments or health. Those tests are unlawful 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 are not reviewed until the job has been offered.

According to the EEOC, the medical examination must not be conducted until after the conditional job offer has been extended. Thus, your company’s proposed policy would likely run afoul of the ADA and could prove to be very costly should litigation ensue.

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