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.]

TESTIMONIALS

As we’ve grown, so have our administrative and payroll needs. That’s why we’ve partnered with HR&P. HR&P supports us every day with human resources, payroll, benefits and compliance so we can focus on being the best BB’s Cafe we can be!

Brooks Bassler, Owner, BB's Cafe

Since 2010, my company has grown to over five hundred employees. With our tremendous growth we needed a human resources and payroll company that could grow with us. That company is HR&P. And as laws have changed, like the Affordable Care Act, HR&P has kept us in compliance. I focus on growing Twin Eagle. I trust HR&P with the rest.

Chuck Watson, Chairman, Twin Eagle

We are the industry leader in Oil Spill Cleanup Products and have dealt with numerous Oil Spill disasters. Knowing up close what a disaster looks like we choose to avoid them in our offices. HR&P guides us through the land mines of HR, Payroll and Benefit compliance so my team can focus solely on helping our clients with their problems, and we avoid our own.

Chad Clay, Owner, CEP Sorbents

One of the best things we did for our business was to partner with HR&P. They’re the experts in human resources, payroll and benefits administration.
HR&P’s web based solutions make it easy for us to manage our employee’s needs. They also help us stay compliant with the Affordable Care Act and with “the alphabet soup” of constantly changing Governmental regulations.

Ken Dennard, CEO, Dennard—Lascar Associates

I run a restaurant, from early in the morning to late at night, our team works hard to deliver great food in a fun atmosphere.
But there’s a lot more to running a business like human resources, payroll, benefits and compliance. So we turn to HR&P.
Outsourcing to HR&P keeps us focused on our business.

Marcus Payavla, Co-Owner, Orleans Seafood Kitchen

NEWSLETTER

To receive more HR articles and tips that keep you informed, sign up for our newsletter.