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Medical Inquiries And Perceived Disabilities Under The ADAAA

Many of our clients contact our office for guidance about medical inquiries under the Americans with Disabilities Act (ADA). It is not uncommon for employers to conduct medical exams or medical inquiries to determine if an applicant can physically meet the demands of the job. When doing so, employers must be careful not to run afoul of the ADA and other federal anti-discrimination laws.

Medical inquiries under the ADA is a topic that was recently addressed in an informal discussion letter issued by the U.S. Equal Employment Opportunity Commission (EEOC) in June of this year.

Medical Inquiries under the ADA:  The EEOC discussion letter confirmed the following:

  • There is no exception to the rule that disability-related inquiries or medical examinations are prohibited during the “pre-offer stage” of the application process. In other words, if an applicant is required to fill out a medical questionnaire prior to receiving a conditional job offer, the employer will be in violation of the ADA.
  • If the employer makes a conditional offer of employment, disability-related questions and medical examinations are permissible as long as they are required for all newly-hired employees in the same job category.
  • After the employment relationship begins, the employer may make disability-related inquiries and require a medical exam only if they are job-related and consistent with business necessity.

Withdrawing a Conditional Offer of Employment:  The EEOC also discussed the withdrawal of a conditional offer of employment. Under the ADA Amendments Act, withdrawing an offer of employment based on information obtained during a medical inquiry will likely result in a finding that the applicant is “perceived as” having a disability. Therefore, it is absolutely critical that an employer consider the consequences under the ADA in all cases where a conditional job offer is withdrawn based on medical information.

What Does this Mean for Employers?  Although the EEOC discussion letter is not an official opinion of the agency, it certainly sends the message that employers need to be prepared to defend ADA claims. Here are some best practices that employers should consider in dealing with these issues:

  • Never subject a job applicant to a medical inquiry or an exam prior to making a conditional offer of employment.
  • After the conditional offer of employment is made, you can seek medical information and require a medical exam as long as this practice is adopted for all newly-hired employees in the same job category.
  • If an offer is withdrawn based on medical information or a medical exam, the employer must be prepared to defend a “perceived disability” claim. Thus, the employer must be able to demonstrate:
    • That the medical impairment or issue renders the individual unqualified to perform the essential functions of the job; or
    • The individual was excluded for safety reasons because he or she poses a direct threat due to the impairment.
  • If the individual’s impairment substantially limits a major life activity or constitutes a record of a substantially limiting impairment, the employer must consider reasonable accommodations that may enable the individual to perform the job functions or reduce the direct threat to an acceptable level. This requires the employer to meet face-to-face with the individual and engage in the “interactive process” before revoking the conditional job offer.
  • Finally, employers must not ask questions about an applicant’s family medical history or genetic information. Under the Genetic Information Nondiscrimination Act (GINA), employers are prohibited from requesting, requiring, or purchasing genetic information including family medical history (except under very limited circumstances).