Q. My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this allowable?
A. Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions:
- All other candidates in the job category must also be required to submit to the physical;
- The candidate’s medical history is kept separate from other employment-related records and is treated confidentially; and
- The results are not used to discriminate against the applicant under the Americans with Disabilities Act (“ADA”) or other discrimination laws.
To ensure that there is no ADA violation, the physical examination should be limited to an assessment of whether the applicant is able to perform the duties of the position, with or without an accommodation. To avoid a claim under the Genetic Information Nondiscrimination Act (“GINA”), the physician should not request information about the applicant’s family medical history.
It would be helpful to provide the physician with a copy of the job description prior to the examination so that the physician is familiar with the responsibilities expected of the position.
Employers will want to tread carefully in making an adverse employment decision based on the results of a physical exam. The applicant’s offer may not be rescinded unless the issue is job-related and consistent with business necessity, or creates a direct threat to health and safety of the applicant or others, and the condition cannot be reasonably accommodated. Moreover, the company could violate discrimination laws if it rescinds an offer based on non-medical information learned as a result of the physical (for example, the applicant’s age, religion, etc.) Likewise, employers could land in hot water if they rescind an offer after learning about an employee’s pregnant condition as the result of the exam.
–Tracey E. Diamond