Pre-Employment Examinations and the Americans with Disabilities Act: How Best to Avoid Liabilities under Federal Law

Abstract

Pre-employment examinations may be the most common medical examinations conducted in relation to work. Physicians who conduct these evaluations can create potential liability for employers and themselves by providing medical advice that does not consider the relevant aspects of the Americans with Disabilities Act (ADA). This statute addresses the timing and content of these examinations and decision-making relating to them. It prohibits disability-based discrimination in all aspects of employment. The law mandates that medical examinations be conducted only after an offer of employment is made to an applicant and that employers not reject candidates due to concerns about insignificant or uncertain future risks or groundless concerns about ability to perform essential job functions. Employers are required to maintain the confidentiality of medical information and to provide reasonable accommodations for qualified applicants with disabilities. Many of the cases brought under the ADA in relation to pre-employment medical evaluations are based on the theory that the employer wrongly regarded an applicant as disabled and incapable of performing the job or erroneously considered the candidate to be high risk for future injury. These issues are explored in summaries of two recent ADA cases. Physicians conducting these examinations are advised to take several steps to avoid involvement in a violation of the ADA. These include becoming directly familiar with essential tasks of jobs, fully understanding the limited ability of medical examinations to predict fitness or risk, reviewing the relevant aspects of the ADA, and communicating directly with applicants and employers when concerns arise.