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Don’t ask for unlimited medical exam consent

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in Employment Law,HR Management,Human Resources

The ADA limits an employer’s ability to demand medical examinations. For one thing, employers can’t demand a medical exam until they have made a conditional employment offer. That ADA provision is designed to allow employees with disabilities to keep the information secret if they don’t want to reveal their conditions.

But exams are allowed following an offer if the exam is consistent with business necessity and all other applicants offered the same job are also required to take the exam.

Once employed, exams are allowed only if needed to determine whether an employee requires a reasonable accommodation or if the employer believes the employee will be unable to safely perform the job.

But can employers require employees to agree to more extensive medical examinations as a condition of employment? Probably not.

Recent case: Christopher Dottolo, who worked for Byrne Dairy, claimed he and other employees had to sign an agreement stipulating that they would undergo random medical examinations at any time during their employment.

Dottolo sued and claimed that the exam provision violated the ADA.

The court seemingly agreed, and the EEOC weighed in that it considered such a requirement illegal. However, because the employer had never followed through and demanded an examination, Dottolo’s lawsuit was dismissed. (Dottolo v. Byrne Dairy, et al., No. 5:08-CV-0390, ND NY, 2010)

Final note: Employers in the food production industry—like the dairy—are understandably concerned about the health of their employees, as food-borne diseases are common. But demanding spot health exams isn’t the way to go. Instead, follow the EEOC special guidance for food-industry employers, which provides solid advice on how to keep food safe while complying with the ADA. Find the guidance online at www.eeoc.gov/facts/restaurant_guide_summary.html.

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