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When can your employer require a medical exam?

Under the Americans with Disabilities Act (ADA), an employer may not require a medical examination or make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

Pursuant to the ADA, an employer’s ability to make disability-related inquiries or require medical exams is analyzed in three stages:

Pre-offer inquiries and exams.  

Prior to an offer of employment, the ADA prohibits any and all disability-related inquiries and medical examinations, even if they are related to the job. The prohibition against any pre-offer inquiries and exams is necessary since the results are frequently used to exclude people with disabilities from jobs. While most provisions in the ADA apply only to employees who can show that they are a qualified individual with a disability, any employee, disabled or not, can pursue a cause of action against an employer for making an unlawful pre-offer medical inquiry or requiring an exam.

Post-offer inquiries and exams.  

The ADA does permit an employer to make an offer of employment conditional on the employee submitted to a medical exam and/or inquiry regardless if the inquiry or exam is job-related or not.  However, employers do not have the legal right to pick and choose which employees it wants to subject to questioning regarding his or her medical condition[s].  Instead, in order for a post-offer medical inquiry or exam to be legal under the ADA, the employer must subject all entering employees within the same job category to the same inquiries.  If an entering employee is subsequently denied employment following a medical inquiry and/or exam, the employer has the burden to show that the reason[s] it revoked the conditional offer of employment was job-related and consistent with business necessity.

During employment inquiries and exams.

During the course of employment, an employer can make disability-related inquiries and require medical exams only if they are job-related and consistent with business necessity.  An employer may also require an employee to submit to a medical exam if the employee requests a reasonable accommodation under the ADA and upon returning to work from FMLA leave or another type of extended medical leave – these types of exams are often referred to as “Fitness for Duty” exams.  It is important to note that tests for illegal drugs and not medical exams or inquiries under the ADA, and therefore, not subject to the same restrictions.

In all cases, information from all medical exams and inquiries gathered by an employer must be kept confidential and in a separate personnel file with limited access provided to management under certain circumstances.

Last month, the EEOC filed a case in federal court in the Western District of Missouri against an employer for requiring all employees to fill out a health questionnaire with 43 questions similar to questions that might be asked when visiting a physician for the first time.  See Equal Employment Opportunity Commission v. Grisham Farm Products, Inc., 16-cv-03105.  We will be keeping an eye on the case and report back with developments.