If you perform pre-employment medical tests on applicants, take your cues from the following case to avoid running afoul of the Americans with Disabilities Act (ADA). Three lessons to remember:
1. 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 conduct a medical exam to test his ability to perform stated tasks. Require the same exam for all candidates; don't single anyone out.
2. Use an independent physician, not the company doctor. And, in most cases, the doctor should tell the company only of any work-related restrictions placed on the employee. The doctor typically doesn't need to name or describe the employee's medical condition. In the case at right, if the company knew the applicant was an epileptic (or it had used a doctor on the), the decision could have gone the other way.
3. Give the doctor a written job description that clearly lists the job's essential functions. This allows the doctor to decide whether medical restrictions are necessary. Job descriptions are a sound investment that can shield your company from ADA liability.
Recent case: After Todd Schuler applied at a Supervalu's 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 Schuler was an epileptic.
The company told Schuler it couldn't hire him because of the work restrictions. He sued, citing the 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 his 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)
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