Physical Exams as a Condition of Employment: Are They Permissible?

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 The applicant’s offer may not be rescinded unless the issue is job-related and consistent with business necessity, or creates a direct threat to health and safety of the applicant or others, and the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

Employers and Election Day: Voting Leave

Q: Now that the election is finally here, am I required to give employees time off to vote?

The answer to that question depends on which state you are in. There is no federal law that requires employers to give time off to vote, but many states do have such laws.  While the laws vary by state, in general, these kinds of laws provide that employers must provide time off to vote if employees do not have sufficient time to vote outside of working hours.  State laws vary as to whether the time is paid or unpaid, how much time must be given, and how much time is “sufficient” to vote outside of working hours.  Many states provide that employees are only entitled to voting leave if they provide advance notice to the employer.

In New York, for example, employers are required to provide up to two hours of paid voting leave to employees who are registered voters and who do not have sufficient time outside of work hours to vote, so long as eligible employees notify their employer of the need for voting leave at least two workdays before election day. If employees have four consecutive hours between the opening of the polls and the start of their work shift, or between the end of their work shift and the closing of the polls, that is considered sufficient time to vote, and leave does not need to be provided.  Employers can require that the leave be taken at the beginning or end of a work shift.  New York is the only state that requires employers to post a notice of employees’ voting leave rights.  But employers in New York must get these notices posted now, as the rules require that the notice be posted at least 10 workdays before every election and remain posted until the polls close on election day.

Pennsylvania and New Jersey do not have voting leave laws, but both states have similar laws providing that employers may not interfere with an employee’s right to vote, or use threats or intimidation to influence an employee’s vote for a particular candidate.  New Jersey also provides that, within 90 days of an election, employers may not exhibit any notice in the workplace that contains any information that could be construed as a threat intended to influence employees’ political opinions or actions.

Finally, it is important to note that while this year’s Presidential election is receiving the most attention, state voting leave laws also apply to other types of elections (general, special and primary, and ballot proposals, among others, depending on the state).

Jessica Rothenberg

Employer Planning Needed to Counter Zika and Influenza Viruses

Q.  Are there any issues I should be concerned about with regard to the Zika virus and upcoming flu season?

A.  Media attention about the Zika virus seems to have lessened now that temperatures in the Northeast have cooled.  If your business requires employee travel to Zika-infected areas, however, there are several issues for you to consider.  Zika concerns also highlight the need for employers to be prepared for issues surrounding other employee viruses, particularly as influenza season begins.

Click here to access an article by Pepper Hamilton’s Amy G. McAndrew highlighting these issues and discussing what employers should be doing with regard to Zika and other viruses.

-Tracey E. Diamond


Creepy Clowns and the Workplace

Q.  My office likes to celebrate Halloween. With all the talk about “creepy clowns,” should I be worried that our celebration will get out of hand?

A.     Creepy clowns are making national headlines as clown sightings spread throughout the country and on social media. Whether the clown prank turns more sinister remains to be seen. In the meantime, however, ‘tis the season of goblins and ghouls, and now is a good time to remind employees of some do’s and don’ts to maintain professional decorum while celebrating the Halloween holiday:

  1. Update dress codes to provide costume guidelines.  Employers should shudder at the thought of skimpy costumes, plastic weapons or costumes depicting the religion or national origin of others.  To the extent that you allow employees to wear costumes at all, remind them that costumes should be appropriate for the workplace.  Keep in mind that the Company’s equal employment opportunity and sexual harassment policies apply at all times, even (especially!) during holiday events.
  2. Provide guidelines for office decorations.  The same concerns regarding costumes apply to office decorations.  While it may be fun to hang spiders and put out pumpkins, make sure employees refrain from decorating the office in a manner that would offend a co-worker’s religion, national origin, or other protected category.
  3. Allow employees to opt out if they want to. Some employees may not celebrate Halloween for religious reasons.  Forcing them to join the group could turn the fun into a lawsuit.
  4. Likewise, if an employee asks for time off to celebrate the religious aspect of All Hallow’s Eve, keep in mind the company’s obligation to accommodation a sincerely held religious belief unless to do so would cause an undue hardship.
  5. If alcohol is going to be served at a Halloween party, make sure to serve food too. Limit the number of hours that the bar is open, or provide drink tickets so that employees do not get too carried away. If an employee appears to be intoxicated, make sure they have a way to get home safely.

Finally, update your security procedures during the holiday season.  If an unknown individual does try to enter your workplace in a creepy clown costume or other inappropriate attire, err on the safe side and alert the authorities.

Prohibiting Politics in the Office

Q.  Recently, two employees almost came to blows arguing over the merits of a Trump versus Clinton presidency. Can our company prohibit employees from talking about politics in the workplace?

A.  The 2016 presidential election has created the most intense and divisive political environment in recent memory. What can a company do if the banter of cable news, talk radio, and polarizing political Facebook posts spills into the workplace?

Because the First Amendment only limits the government’s ability to limit speech, an employer’s ability to prohibit free speech in the workplace depends on whether the employer is a public or private entity. Generally speaking, public employees have the right to free speech if they are conveying a message as a private citizen and the subject matter of the speech is a matter of public concern. However, private employees generally have no First Amendment protections in the workplace.

In most states, if a non-unionized private employer wants to prohibit political discussions at work, they may do so. As a practical matter (and from an employee morale standpoint), an employer is best served by enforcing its existing non-solicitation , dress code, and general conduct rules prohibiting behaviors such as harassment and workplace disturbances. Although it would be legal in many states and municipalities, we do not recommend for employers to discipline an employee simply for expressing a political opinion or candidate preference. If an employee’s political speech interferes with production or is harassing to other employees, however, an employer certainly can impose discipline. Likewise, if an employee’s attention is focused more on Hillary Clinton or Donald Trump than  his or her work, a private employer can and should take action.

If an employer disciplines an employee related to the employee’s political speech, the employer must ensure that the employee in question is not actually speaking out about workplace conditions (such as expressing support for a particular candidate because she advocates an increase in the minimum wage) because such activity may be considered concerted activity protected by the National Labor Relations Act. In addition, it is important to differentiate between off-duty and on-duty conduct. In many states, such as New York and California, for example, it is unlawful to discipline an employee for engaging in political discourse outside of the office, such as participating in a political campaign.

If a company does impose discipline, the employer should administer the discipline consistently to avoid violating anti-discrimination laws. If a difficult situation arises, err on the side of caution and consult legal counsel.

The 2016 presidential election creates unique challenges, as the major candidates are of different sexes and statements have been made throughout the election season regarding protected classes, including sex, race, religion, national origin, and disability. A political discussion (whether it is in person or online) can quickly devolve into discriminatory or harassing comments. Even though a presidential candidate may make sweeping generalizations about Mexicans, Muslims, or women, such behavior is inappropriate (and could be the catalyst for a harassment or discrimination claim) in the workplace and should be addressed through a company’s non-discrimination policy. Likewise, an employee’s comment about a particular candidate that is based on that person’s gender or other protected characteristic is not appropriate for the workplace. Now is a good time to review and update your policy prohibiting discrimination and harassment.

No two workplaces are the same and every company will need to examine its own workforce dynamics to determine what type of political activity is and is not appropriate, whether employee/supervisor training is required, and whether policies need to be put in place to preempt potential problems.

-Lee Tankle