Distinguish Between the ADA’s Many Prohibitions on Medical Examinations

Allen Smith, J.D. By Allen Smith, J.D. June 1, 2021
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a doctor and a patient

​Americans with Disabilities Act (ADA) compliance gets complicated fast when it comes to the law's prohibitions on medical examinations of job applicants and employees.

The ADA has different standards for medical examinations of job applicants and employees and various rules for medical examinations of employees coming back from leave versus those who aren't performing well or might pose a safety risk. Employers need to ensure they follow the different rules consistently so courts don't reject the examinations as biased or too intrusive.

Earlier this year, the 3rd U.S. Circuit Court of Appeals declined to rely on a post-job-offer psychological examination, ruling that psychologists who screened out an applicant arguably hadn't consistently applied the exam.

"Courts will reject employer reliance on inquiries or examinations that are not used equally for all entering employees," said Anthony Mingione, an attorney with Blank Rome in New York City.

Medical Examinations

"It is important for employers to understand what a medical examination is for purposes of the ADA," said Jennifer Colvin, an attorney with Ogletree Deakins in Chicago.

She noted that medical examinations include:

  • Blood pressure screening and cholesterol testing.
  • Diagnostic procedures such as X-rays, CT scans and MRIs.
  • Range-of-motion tests that measure muscle strength and motor function.
  • Psychological tests designed to identify a mental impairment.
  • Pulmonary function tests.
  • Tests that screen for possible nerve damage and susceptibility to injury.
  • Vision tests.

The following are not considered medical examinations under the ADA:

  • Drug testing to identify the current illegal use of drugs.
  • Physical agility tests that measure an employee's ability to perform actual or simulated job tasks.
  • Physical fitness tests that measure an employee's performance of physical tasks, such as running or lifting, provided such tests don't include examinations that could be considered medical (e.g., measuring someone's heart rate or taking a person's blood pressure).
  • Psychological tests that measure personality traits such as honesty, preferences and habits.

Before a job is offered, the ADA prohibits medical examinations, even if they are job-related, Colvin said.

After a Job Offer Has Been Extended

After a conditional job offer has been made and before the applicant starts work, an employer can conduct a medical examination regardless of whether the exam is job-related, so long as the employer does so for all entering employees in the same job category, Colvin said.

"The employer may reject the applicant based on the outcome of the examination only to the extent that rejection is job-related and consistent with business necessity," said Anthony George, an attorney with Bryan Cave Leighton Paisner in Denver. "This generally means that the applicant may be rejected only for a medical condition that would prevent [him or her] from performing the essential functions of the job."

"In addition, an employer must demonstrate that no reasonable accommodation was available or possible without imposing an undue hardship on the business," said Amy Epstein Gluck, an attorney with FisherBroyles in Washington, D.C.

Appeals Court Ruling

In Gibbs v. City of Pittsburgh, the plaintiff claimed that after he got a conditional job offer to be a policeman, two psychologists who screened him recommended not hiring him because he had attention deficit hyperactivity disorder (ADHD), even though his condition is under control. Although the plaintiff had a history of youthful misbehavior, he alleged that Pittsburgh hired other policemen with similar histories who did not have ADHD.

If the plaintiff is right, Pittsburgh is liable for relying on the psychologists, the appeals court stated. "The city cannot dodge liability by labeling the psychologists' approval as a job qualification," the court said.

The district court had ruled for Pittsburgh, saying that state law required it to screen out the plaintiff. "The parties debate whether that is true, but it makes no difference," the appeals court said, reviving the ADA claim. "Under the Supremacy Clause, an employer may not shield itself from federal anti-discrimination liability just by saying that it was trying to follow state law."

After Employees Return from Medical Leave

The rules for medical examinations of employees are more stringent, but exams are permitted in limited circumstances.

If an employee has been out on medical leave, the employer may require the individual to pass a fitness-for-duty examination before returning to work if the employer has verifiable concerns about the individual's ability to perform the job safely, said Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. For example, if an employee whose duties involve heavy lifting takes medical leave for back surgery, a fitness-for-duty examination might be required prior to the employee resuming work, he noted.

"An employer cannot use the employee's leave as justification for requiring an unrelated medical examination," Colvin cautioned. For example, if a receptionist was on leave after breaking a leg at work due to falling on a freshly mopped floor, the employer wouldn't have a reasonable basis to subject the employee to a medical examination before the individual returns to work, she said.

Employees Who Aren't Performing Well

If an employee's performance deteriorates and circumstances indicate a physical cause, an employer may ask the worker about the person's physical ability to perform the job's essential functions and require a medical exam to test that person's ability to perform the essential functions, Mook noted.

"The medical inquiry and medical examination must be limited to those factors that address whether or not the employee can continue to perform his or her job duties," he said. "It may not be a general physical."

Employers must ensure the doctor conducting the medical examination understands its purpose and give the health care provider appropriate background information, including the job description, he said.

Direct Threats to Safety

Fitness-for-duty examinations usually are performed by the employee's doctor, while examinations to determine if the worker poses a direct threat to safety often are by an employer-selected professional, Mingione said.

However, if possible, "employers should consider any employee-provided medical information before making any decisions," he added.

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