The Americans with Disabilities Act (ADA) and Civil Rights Acts have brought many changes into the workplace. One of the biggest changes for employers is with pre-employment physicals.
Employers covered by civil rights laws and the ADA. are prohibited from having job applicants take pre-employment physicals. The employer can, however, make a conditional job offer, pending a satisfactory completion of a medical exam.
Under civil rights laws and ADA, you can no longer ask job applicants about medical and emotional conditions. But once you offer an applicant a job, you can then inquire into their medical and emotional history. As a result many employers have changed from using a “pre-employment physical” to using a “post-offer, pre-placement physical examination.”
To help in this post-offer stage some employers have developed “Conditional Job Offer” forms or “Post-Employment Job Offer” forms (similar to job applications). These forms focus in on the health and safety background of new hires.
The forms ask questions like: “Do you have or have you had any injuries or illnesses not on the job?” “Are you currently taking any long-term medications?” “Have you been diagnosed with an illness or injury that you currently are not being treated for?”
These forms aren’t for every employer. Employers in manufacturing, transportation, construction and the medical field are the most likely employers using them. But regardless of who you are and why you might use them, beware.
Warning #1: Be extremely careful when making post-job-offer, pre-employment health-related inquiries. Be extremely careful when requiring post-offer, pre-employment physicals. If you ask health-related questions or require physicals of one candidate to whom you give a conditional job offer you must ask the same questions or require the same physicals of all candidates who receive a conditional job offer in the same job category.
For example: You are going to hire five truck drivers and you offer the jobs to three white males, one Asian female and one native American male. You can’t require only the Asian female and Native American male to take post-offer, pre-employment physicals. You are required to have all five candidates take physicals.
Warning #2: If you are going to make post-offer, pre-employment health-related inquiries or require post-offer, pre-employment physicals, ask only for answers and information about conditions that are or could be job-related (have an impact on an individual’s job performance). Get guidance from an attorney in crafting the questions and the forms given to employees and health professionals.
Warning #3: The next danger comes once you have the health-related answers and information. How are you going to use it? You only have a need and right to know about any condition(s) that are job-related. It is imperative to keep all employee health-related information confidential.
Keep in mind: If you decide to reverse a hiring decision because of a post-medical examination which reveals a disability, be careful. Your reason for not hiring the person must be because the disability prohibits the person from doing the job and the reasonable accommodation wasn’t feasible.
[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]
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