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Hiring, ADA

Conducting pre-hire tests? Leave medical exams for last

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in Employment Background Check,Hiring,Human Resources

When you or your hiring managers need to fill an open slot fast, it may be tempting to skip steps in the application process. But don't do it; follow the proper pre-hire chain of events, especially when it comes to testing. By reordering the testing process, you could violate the ADA.

Specifically, complete all nonmedical parts of your pre-hire screening first, including skills testing and background checks. Then, after those tests are completed and you've made a conditional job offer, schedule medical exams that test for fitness for duty and ability to perform essential job functions.

Bottom line: The ADA requires that you perform medical exams only after you've already determined an applicant's eligibility for hire.

Recent case: To speed the application process, an airline extended conditional job offers to three flight-attendant applicants. The offers were contingent upon a successful background check, drug test and medical exam. The applicants took the medical exam after the offers were made, but before the background check. After lab tests revealed that all three were HIV-positive, the company rescinded the job offers, saying it did so because the applicants hid the truth.

The applicants sued under the ADA. The airline argued that the testing sequence didn't matter because, although the medical test preceded the background check, the HIV lab tests wouldn't have been reviewed until after the background check was completed.

A federal appeals court didn't buy that argument, saying that the ADA specifically regulates the timing and sequence of when applicant information can be collected during the hiring stage, not the order in which it's reviewed.

Employers must complete all nonmedical testing before obtaining any medical information, or they must be able to show reasons they can't do so. Expediting the hiring process isn't a valid reason. (Leonel v. American Airlines Inc., No. 03-15890, 9th Cir., 2005)

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